Legality of OSHA Safety Rules Challenged in Federal Appeals Case

A federal court hearing Thursday could determine whether hundreds of OSHA workplace safety requirements are illegal.

At issue during oral arguments at the US Court of Appeals for the Sixth Circuit is whether when Congress passed the Occupational Safety and Health Act of 1970, it delegated too much authority to the Occupational Safety and Health Administration to decide which safety dangers needed to be regulated and what the protections should be.

If judges with the Sixth Circuit rule against OSHA, the decision could strike down safety regulations covering hazards from falls to electrocution dating back 50 years.

Allstates Refractory Contractors LLC of Waterville, Ohio, wants the court to overturn the rules.

“When it comes to workplace-safety standards, the only purported limit on that broad rulemaking authority in the Occupational Safety and Health Act is that these rules must be ‘reasonably necessary or appropriate to provide safe or healthful employment and places of employment,’” attorneys for Allstates from the firm Jones Day wrote in a brief to the court.

“That is no limit at all. Congress offered no guidance on what makes a rule ‘reasonably necessary or appropriate.’ Instead, it left that weighty policy question entirely to the agency.”

Allstates didn’t challenge OSHA health rules, since the US Supreme Court in earlier decisions had approved, within limits, OSHA’s power to create health standards.

Jones Day partner Brett Shumate, who served as a Trump administration politically appointed deputy assistant attorney general, is expected to present Allstates’ case. Shumate didn’t respond to a request to discuss the case.

History on OSHA’s Side?

OSHA, represented by the US Department of Justice, countered in a brief that more than 50 years of court decisions supported the agency’s safety rulemaking powers.

DOJ attorneys noted that courts interpreting the OSH Act have set limits for OSHA, most recently rejecting in 2022 the Biden administration’s Covid-19 test-or-vaccination rule as being outside of OSHA’s jurisdiction.

The attorneys said OSHA must “make a threshold finding ... that significant risks are present and can be eliminated or lessened by a change in practices” before issuing any permanent health or safety standard.

OSHA is also limited to only issuing standards that are “economically” and “technologically feasible.”

The agency declined requests to discuss the case.

Consequences

It’s not clear how many OSHA rules could be canceled if the court rules for Allstates or what measures would replace the canceled standards.

Catherine Ruckelshaus, general counsel for the National Employment Law Project, which filed a brief in support of OSHA, said that without OSHA standards, Congress and courts would be forced to write the rules, something for which they lack the technical expertise.

While worker safety proponents don’t always agree with OSHA standards, the advocates “deeply believe this system, while imperfect, works because all of the voices are around the table and the expertise and facts are on the table,” she said.

State laws, workers’ compensation, industry consensus standards, and fear of lawsuits will fill the OSHA regulatory gap, said David Tyron, director of litigation for conservative legal think tank The Buckeye Institute, which filed a brief in support of Allstates.

“The mere fact that these industries are regulating themselves more effectively than OSHA,” Tyron said, “indicates the court need not fear that if it strikes down these OSHA regs—the OSHA mandate; that suddenly these places will become unsafe.”

Allstates initially filed the lawsuit in 2021 with the US District Court for the Northern District of Ohio.

The district case ended Sept. 2, 2022 with the judge issuing a summary judgment in favor of OSHA. “With no binding or persuasive authority supporting its argument, Plaintiff [Allstates] falls short of demonstrating actual success on the merits,” Judge Jack Zouhary wrote.

The company then appealed to the Sixth Circuit in Cincinnati.

Allstates filed the lawsuit two years after OSHA cited the company for two violations found during an inspection at a glass plant project in Charleroi, Pa. OSHA at first proposed an $11,934 fine for not protecting workers from falling objects, however the case was settled and Allstates paid a $5,967 fine for one serious violation

Hearing the case will be judges Deborah Cook and Richard Allen Griffin, both appointed by President George W. Bush, and John Nalbandian, appointed by President Donald Trump.

The case is Allstates Refractory Contractors LLC v. Martin Walsh, 6th Cir., No. 22-cv-03772, docket 4/24/23.