The End of an Era: What’s Next for OSHA Post-Chevron?

The US Supreme Court has overturned Chevron, ending 40 years of agency deference and limiting OSHA’s rulemaking and interpretive authority.

On June 28, 2024, nan Supreme Court overturned Chevron, changing really courts reappraisal national agency actions and interpretations.

By: Jamie Spataro

During nan four-decades-long era of nan Chevron doctrine, erstwhile an agency norm was challenged, courts afforded wide deference to agencies pinch respect to their mentation of national statutes erstwhile promulgating general regulations, which are taxable to publication successful nan Federal Register and a announcement and remark period.  Courts traditionally afforded little deference to agency mentation letters, enforcement memoranda and informal guidance.  Where a statute was recovered to beryllium silent aliases ambiguous pinch respect to an issue, courts were bound by Chevron to resoluteness nan rumor successful favour of nan agency’s reasonable mentation of nan statute. 

On June 28, 2024, successful Loper Bright Enterprises v. Raimondo, Secretary of Commerce, nan U.S. Supreme Court overturned Chevron, abruptly ending an era of important agency deference.  In Loper, nan Court held that nan Administrative Procedure Act requires courts to workout their ain independent judgement erstwhile reviewing an agency action, and courts whitethorn not defer to an agency’s mentation of nan rule simply because a statute is ambiguous. 

Loper levels nan playing section successful nan discourse of challenges to agency actions, strips agencies of their reliance upon automatic deference, and requires courts to workout their ain independent judgement successful deciding whether an agency has acted wrong its statutory authority erstwhile making rules and issuing interpretive guidance.

OSHA’s Rulemaking and Interpretive Authority Post-Chevron

The Court’s determination successful Loper will meaningfully effect OSHA’s rulemaking and interpretive authority.  Notably, it is apt that OSHA’s traditionally wide rulemaking authority will beryllium substantially curtailed, requiring nan agency to trade narrowly-tailored regulations that intimately way nan statutes they activity to instrumentality successful bid to past a ineligible situation to its regulations.  Likewise, OSHA regulations that person already been published will beryllium unfastened to much aggravated scrutiny by courts, inviting ineligible challenges to existing regulations, specified arsenic OSHA’s recently-issued Worker Walkaround Representative rule, which grants non-affiliated national representatives entree to an employer’s worksite.  OSHA’s projected rules are besides susceptible to accrued scrutiny successful ray of Loper, specified arsenic nan agency’s projected power standard, presently unfastened for nationalist comment.  The consequence of tribunal challenges to a early last power unwellness norm could punctual OSHA to reconsider its wide and perchance burdensome projected norm earlier it is finalized.

Employers now person an accrued likelihood of occurrence successful challenging OSHA’s astir broadly-enforced regulations, specified arsenic nan agency’s widely-cited General Duty Clause to rumor violations successful nan absence of a circumstantial standard, arsenic good arsenic its recordkeeping modular nether which nan agency has enjoyed a favorable burden-shifting model that has arguably resulted successful an progressively expansive presumption of work-relatedness nether nan agency’s wide building of nan “work environment.”  Indeed, OSHA’s long-standing believe of issuing interpretive guidance, which was antecedently entitled to only immoderate agency deference, apt will beryllium afforded small to nary specified deference successful nan absence of a clear legislative instruction post-Chevron.  After Loper, OSHA’s mentation letters tin now beryllium challenged to nan grade nan agency’s guidance connected its look exceeds Congress’s definitive assistance of statutory authority.  Without immoderate entitlement to Chevron deference, peculiarly wherever Congress is silent connected an issue, a tribunal whitethorn now employment its ain champion reference of nan statute, freeing up nan tribunal to measure OSHA’s guidance objectively to opportunity what nan rule is.

What Can Employers Do Now?

Now that national agencies are nary longer entitled to Chevron deference, employers should place immoderate OSHA regulations aliases interpretations that negatively effect their operations, aliases which are being utilized arsenic nan ground for enforcement, and measure those rules and guidance against nan statutes nether which they purport to beryllium authorized.  If it appears connected its look that nan agency is exceeding its statutory authority, a situation to nan agency action successful national tribunal could beryllium considered.  Indeed, conscionable 3 days aft deciding Loper, connected July 1, 2024, nan Court further enhanced a plaintiff’s expertise to situation a national agency action by expanding nan timeframe wrong which a plaintiff whitethorn sue, ruling that nan statute of limitations to situation an action does not statesman to tally until nan plaintiff is injured by nan action.1

One important limitation of Loper is that it impacts national agencies only.  While Loper does not expressly effect authorities agencies, to nan grade authorities courts person adopted Chevron-like deference successful evaluating challenges to nan state’s agency actions successful nan past, it whitethorn go much difficult for those courts to proceed justifying specified deference, pinch nan accepted national persuasive authority nary longer disposable to mention arsenic support for specified an approach.

Jamie Spataro

Jamie Spataro is a shareholder successful Littler Mendelson PC’s Pittsburgh office. A personnel of nan firm’s Occupational Safety and Health Practice Group, Jamie’s believe encompasses a wide scope of workplace information and wellness issues.

1 See Corner Post, Inc. v. Board of Governors of nan Federal Reserve System, 603 U.S. ___ (2024).