Future of OSHA Safety Rules Winds Up in Appeals Court Tussle

The future of OSHA’s ability to regulate workplace safety is now in a federal appeals court’s hands.

If the US Court of Appeals for the Sixth Circuit rules against the Occupational Safety and Health Administration, hundreds of safety requirements could be stricken, and Congress and courts would be left to write safety regulations.

The primary thrust made in oral arguments Thursday by construction company Allstates Refractory Contractors of Waterville, Ohio, is that when Congress created OSHA in 1970, it delegated too much authority to the agency to decide how to regulate workplace safety.

“OSHA is regulating nationwide. It’s regulating virtually every industry in America,” said Allstates’ attorney Brett Shumate, a Jones Day partner and former Trump administration Justice Department official.

“OSHA has too much discretion because Congress hasn’t provided boundaries to guide the agency,” Shumate told the three-judge panel of the Sixth Circuit in Cincinnati.

Supreme Court Setup?

Judge Richard Allen Griffin pointed out during the hearing that OSHA has been enforcing safety rules for five decades.

“The statute has been on the books for over 50 years. Why is the challenge being brought now?” Griffin asked Shumate.

“The Supreme Court has indicated, several justices have indicated an interest in considering the non-delegation doctrine,” the attorney responded.

The doctrine is a legal belief that Congress can’t hand over its detailed lawmaking duties to agencies in the executive branch—in this case, OSHA.

Griffin asked if Shumate was asking the appeals court overturn past US Supreme Court decisions.

“We cannot reconsider Supreme Court precedent. Aren’t you just setting this up for the Supreme Court? Is that what we’re doing?” Griffin said.

“No, your honor. We want to win this case in this court, and we think we can win this case,” Shumate said. “There is no controlling precedent from the Supreme Court upholding a statute so broad and so unique as to issue whatever rules you think are appropriate.”

Department of Justice attorney Courtney Dixon represented OSHA in court Thursday.

Dixon argued that OSHA doesn’t have unlimited discretion in writing safety regulations. The agency is limited to rules that address “significant risk and harm,” she said.

OSHA also limits itself to rules that are economically and technologically feasible, Dixon said.

“They are meaningful limitations,” she said.

Judge John Nalbandian asked if those limitations were too broad, considering OSHA’s wide jurisdiction.

“You may assert the power to regulate people who work from home,” Nalbandian said.

Dixon said that when OSHA rules are challenged in court, judges do consider if OSHA went beyond its congressional mandate, such as the Supreme Court’s rejection of the Covid-19 test-or-vaccination rule.

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

The district case ended Sept. 2, 2022, with the judge issuing 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.

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, but the case settled and Allstates paid a $5,967 fine for one serious violation.

Hearing the case Thursday were Sixth Circuit judges Deborah Cook and Griffin, both appointed by President George W. Bush, and Nalbandian, appointed by President Donald Trump.

The case is Allstates Refractory Contractors LLC v. Walsh, 6th Cir., No. 22-3772, oral arguments 4/27/23.