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Aug 30, 2023

OSHA's broad rulemaking powers upheld by US appeals court

REUTERS/Jose Luis Magana Acquire Licensing Rights Aug 23 (Reuters) - A divided U.S. appeals court on Wednesday rejected an Ohio contractor's challenge to the U.S. Occupational Safety and Health

REUTERS/Jose Luis Magana Acquire Licensing Rights

Aug 23 (Reuters) - A divided U.S. appeals court on Wednesday rejected an Ohio contractor's challenge to the U.S. Occupational Safety and Health Administration's (OSHA) ability to adopt rules governing workplace safety.

The 6th U.S. Circuit Court of Appeals in a 2-1 ruling said the 1970 law that gives OSHA its powers is valid because it limits the agency's oversight to workplace safety and establishes a set of principles it must follow in adopting safety standards.

The court affirmed a judge's ruling dismissing a lawsuit by Allstates Refractory Contractors LLC, which claimed Congress violated the U.S. Constitution by giving OSHA nearly unfettered power to regulate private companies.

OSHA rules apply to virtually all private employers and cover everything from walking surfaces and fall protection to respiratory equipment and eyewash stations.

The 6th Circuit said that while the agency had been given broad authority, it was only allowed to adopt rules that are "reasonably necessary or appropriate" to address known health risks.

"Congress aptly declared what purposes OSHA must consider and how the agency’s standards must be reasonably needed to respond to Congress’s concerns," Circuit Judge Richard Griffin wrote.

Griffin said the 6th Circuit was joining the 7th and D.C. Circuits, which respectively rejected challenges to OSHA's rulemaking power in 1978 and 2011.

Ohio-based Allstates, which provides furnace services to glass, metal, and petrochemical facilities, did not immediately respond to a request for comment. Nor did OSHA.

Allstates sued OSHA in 2021, claiming the safety standards it was subjected to were overly burdensome and in some cases more dangerous than the company's internal safety policies.

The company said that in giving OSHA broad rulemaking authority, Congress had delegated its legislative powers in violation of the U.S. Constitution.

U.S. District Judge Jack Zouhary in Toledo, Ohio, ruled for OSHA last September. He said Congress had properly limited OSHA's powers by requiring the agency to identify significant risks and only adopt standards that are reasonably necessary or appropriate to mitigate them.

Allstates appealed and the 6th Circuit majority on Wednesday agreed with Zouhary.

Griffin, joined by Circuit Judge Deborah Cook, wrote that the U.S. Supreme Court has upheld similarly broad delegations of power by Congress, such as a law allowing the U.S. Department of Agriculture to adopt rules involving the use of forests on federal land.

Circuit Judge John Nalbandian, an appointee of Republican ex-President Donald Trump, dissented. He said the law granting OSHA's powers requires no fact-finding by the agency before it takes action and provides no "intelligible principle" limiting how OSHA exercises its authority.

Nalbandian said the 7th and D.C. Circuit in the decisions cited by Griffin had not specifically addressed whether Congress properly limited OSHA's ability to identify safety risks that require rulemaking.

The case is Allstates Refractory Contractors LLC v. Su, 6th U.S. Circuit Court of Appeals, No. 22-3772.

For Allstates: Brett Shumate of Jones Day

For OSHA: Courtney Dixon of the U.S. Department of Justice

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at [email protected].