Inside OSHA

September 22, 2023


The Justice Department is urging the Supreme Court to preserve the Chevron doctrine, which grants OSHA and other agencies discretion to reasonably interpret ambiguous statutory language, warning that such a rollback would send a “convulsive shock” to the legal system and create “cascading uncertainty” for agency decisions.

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An employer attorney says companies, especially small businesses, are likely to push OSHA for greater flexibility in its upcoming heat-danger standard after the agency quietly released a lengthy list of “potential options” for its proposal including a range of possible heat-control requirements, temperature thresholds and training mandates.

A prominent industry attorney says OSHA is likely to include mandates for facilities to plan for extreme weather like hurricanes in any overhaul of the process safety management (PSM) standard, building on what is already a broad push by several other program offices and agencies to incorporate weather resiliency into regulatory programs.

The California Legislature has passed a scaled-back bill requiring employers to implement workplace violence-prevention plans on a faster timeline than a pending rule at California OSHA (Cal/OSHA) would impose, and sources say Gov. Gavin Newsom (D) is expected to sign it into law before an Oct. 14 deadline.

A broad coalition of industry trade associations is again pressing the Senate to reauthorize the Chemical Facility Anti-Terrorism Standards (CFATS) program by quickly passing a two-year bill that has already cleared the House, teeing up the issue again after lawmakers returned from their August recess.

Lawmakers and witnesses at a recent Senate Environmental and Public Works Committee (EPW) hearing on extreme heat appeared open to a union official’s arguments that this summer’s record temperatures show the need for stronger worker protections, though several also expressed opposition to a “one-size-fits-all” nationwide policy.

OSHA is taking a broad view of when a worker’s injury can be considered “work-related” in a new guidance letter holding that an unprovoked car crash and shooting on public roads still meets the test, and rejecting an employer’s suggestion that such “unforeseeable third-party criminal acts” can overcome the general presumption that any on-the-job incident falls under the agency’s recordkeeping mandates.

OSHA has agreed to reform how it handles reimbursements to state plans for emergency supplemental funding following a report from the Office of Inspector General (OIG) faulting several aspects of the process, though the agency is maintaining that some of the problems that report found with fund allocation were out of its control.

Echoing chemical industry groups, Sens. Joe Manchin (D-WV), Shelley Moore Capito (R-WV) and J.D. Vance (R-OH) are pressing EPA to rework its proposed TSCA rule regulating methylene chloride to allow all uses of the solvent to continue as long as companies meet worker-protection mandates.

Trade groups, congressional Republicans and attorneys are outlining arguments against OSHA’s proposal allowing third parties to accompany compliance officers on inspections even when they do not work for the company involved, ranging from claims that it is legally invalid to calling it the result of “regulatory voodoo.”