The Occupational Safety and Health Administration (OSHA) has begun what the US Department of Labor describes as “aggressive deregulatory efforts” to “put American workers and job creators first.” In response to President Donald Trump’s Executive Order 14192, titled “Unleashing Prosperity Through Deregulation,” OSHA published 25 proposed rules and one final rule in the Federal Register on July 1, each of which is aimed to “cut regulatory burdens, spur job creation, and fuel economic opportunity.”
These rules propose, among other things, limiting the scope of the General Duty Clause, revising respiratory protection medical requirements for certain devices and chemicals, providing greater flexibility in an employee’s choice of respiratory protection when working with certain chemicals, and eliminating dozens of other regulatory requirements that the agency contends are outdated or duplicative.
This is the first of what we can assume will be several rounds of rollbacks of regulations that this administration has deemed “obsolete and burdensome.”
OSHA proposes to clarify its interpretation of the General Duty Clause “to exclude from enforcement known hazards that are inherent and inseparable from the core nature of a professional activity or performance.”
OSHA relies upon the General Duty Clause, 29 USC 654(a)(1), to cite employers when a hazard in the workplace is not covered by a specific OSHA standard. Through this rulemaking, the agency seeks to align its interpretation of the General Duty clause with a dissent filed by then-DC Circuit Judge Brett Kavanaugh in SeaWorld of Florida LLC v. Perez, 748 F.3d 1202 (DC Cir. 2014).
There, the court found SeaWorld was liable under the General Duty Clause for exposing employees to the recognized hazard of working with orca whales during live performances without providing adequate protection, such as a physical barrier between the whale and the trainer. Judge Kavanaugh, in a lone dissent, opined that the General Duty Clause does not authorize OSHA to regulate hazards arising from normal activities that are intrinsic to sports or entertainment occupations.
In light of the issues raised in that dissent and subsequent developments in administrative and constitutional law, OSHA now attempts to codify “the principle that the General Duty Clause does not authorize OSHA to prohibit, restrict, or penalize inherently risky activities that are intrinsic to professional, athletic, or entertainment occupations.”
Specifically, the rule “would provide that the General Duty Clause does not require employers to remove hazards arising from inherently risky employment activities, where: the activity is integral to the essential function of a professional or performance-based occupation; and the hazard cannot be eliminated without fundamentally altering or prohibiting the activity.”
While Sea World focused on the sports and entertainment industries, where some risk of physical injury is intrinsic, OSHA’s reasoning could apply more generally to the full range of occupational activities where inherent risks are involved. Interested parties must submit comments on this proposed rule by September 2.
OSHA proposes removing certain medical evaluation requirements in the Respiratory Protection Rule for filtering facepiece respirators (FFRs) and loose-fitting powered air-purifying respirators (PAPRs). While its current rule requires an employer to complete medical evaluations (as part of an employer’s Respiratory Protection Program) to determine whether an employee is physically able to wear a given respirator, OSHA now takes the position that current data is “lacking and insufficient to establish that medical evaluations meaningfully reduce material impairment caused by wearing” these types of respirators. If finalized, the rule would remove medical evaluation requirements for these two respirator types.
OSHA’s proposals would also provide employers greater flexibility in the respiratory protection they select for workers who are exposed to the following substances in the workplace: 1,2-dibromo-3-chloropropane; 1,3-butadiene; 13 carcinogens (4-nitrobiphenyl, etc.); acrylonitrile; asbestos; benzene; cadmium; coke oven emissions; cotton dust; ethylene oxide; formaldehyde; inorganic arsenic; lead; methylene chloride; methylenedianiline; and vinyl chloride. Each of these proposals will delete substance-specific standard requirements duplicative of the general respiratory requirements in 29 CFR 1910.134 and will “remove unnecessary restrictions on respirator selection where another equally protective option exists.”
OSHA also withdrew its proposed rule that would have added a new column to the OSHA 300 log for work-related musculoskeletal disorders (MSDs). In so doing, OSHA determined that “the MSD column would not materially improve the information currently available from national statistics on MSDs.” The proposal’s withdrawal is effective immediately; however, this does not change an employer’s obligation to complete and retain occupational injury and illness records.
OSHA also issued one final rule that will revoke 29 CFR 1911.10 and 29 CFR 1912.3. Because these provisions imposed burdens on the assistant secretary beyond those mandated by statute, and “needlessly delay[ed]” the secretary of labor’s regulatory agenda, the assistant secretary for OSHA is no longer required to consult with the Advisory Committee on Construction Safety and Health in formulating new rules applicable to construction work.
OSHA also proposes rescinding its construction illumination requirements in 29 CFR 1926.26 and 1926.56. This would remove the requirement that construction areas, aisles, stairs, ramps, runways, corridors, offices, shops, and storage areas where work is in progress be lighted with either natural or artificial illumination. OSHA contends the standard “does not substantially reduce a significant risk to workers” and should therefore be removed.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following: