Reprinted with permission from Law360 and Porfolio Media, Inc.
The Occupational Safety & Health Act requires that the U.S. Occupational Safety & Health Administration (OSHA) observe a rulemaking process that is, in many ways, more rigorous and protracted than the rulemaking processes required of regulatory agencies by the Administrative Procedure Act or other statutes. While the OSH Act’s more cumbersome procedures can limit the pace of OSHA’s formal rulemaking, it has made OSHA one of the most prolific promulgators of guidance and memoranda imposing clear regulatory requirements and obligations. Perhaps owing to a pragmatic recognition that there is insufficient time remaining to issue rules to fulfill this Administration’s occupational safety and health goals, OSHA has recently stepped up its use of non-regulatory tools.
Employers should be careful to avoid measuring the pace of OSHA’s regulatory activity by what is published in the Federal Register. None of the actions discussed above were issued through notice-and-comment, but each plainly imposes rule-like obligations that OSHA inspectors will enforce regardless of how it was promulgated. While OSHA’s increased use of guidance and memoranda in lieu of regulations has been challenged, those actions are a long way from being resolved.
Employers should be aware that OSHA requirements impacting their facilities do not always appear in rules, and should check OSHA’s website frequently for new guidance, interpretive letters, and enforcement directives and memoranda. Employers should also be aware that compliance with OSHA requirements may not always equate to “compliance” in the eyes of an OSHA inspector. OSHA specifically directs its inspectors to identify and enforce requirements far more stringent than those imposed through notice-and-comment rulemaking.
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