6th Circuit sides with OSHA over power to set workplace safety standards

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Regulatory Practice 6th Circuit sides with OSHA over power to set workplace safety standards

By Amanda Robert

August 24, 2023, 1:07 pm CDT

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According to U.S. District Judge Richard Griffin, Congress directed the Occupational Safety and Health Administration to set necessary standards for public health in the workplace. Photo by James Nielsen/The Houston Chronicle via the Associated Press.

Is Congress’ delegation to the Occupational Safety and Health Administration to set workplace safety standards constitutional?

In a 2-1 decision Wednesday, the 6th U.S. Circuit Court of Appeals at Cincinnati said yes, following the same line of reasoning as other circuits that have previously considered this question.

“More than 50 years ago, Congress passed, and President Nixon signed into law, the Occupational Safety and Health (OSH) Act,” wrote U.S. District Judge Richard Griffin for the majority. “Throughout the next half-century, challenges to the constitutionality of the act have been uniformly rejected.”

Courthouse News Service, Bloomberg Law and Reuters have coverage.

In its lawsuit against the U.S. Department of Labor and the Occupational Safety and Health Administration, Allstates Refractory Contractors, a full-service industrial general contractor based in Ohio, challenged the regulatory agency’s authority to set “reasonably necessary or appropriate” workplace safety standards. Allstates Refractory Contractors said Congress violated the U.S. Constitution by passing the Occupational Safety and Health Act and delegating its legislative powers to the Occupational Safety and Health Administration.

In affirming a district court, which rejected Allstates Refractory Contractors’ challenge, the 6th Circuit held that the statute “comfortably falls within the ambit of delegations previously upheld by the Supreme Court.” Citing the “intelligible principle” test, which was established in the 1928 case Hampton Jr. and Co. v. United States, Griffin wrote, “‘If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.’”

“This test balances Congress’ need for flexibility with the Constitution’s prohibition on legislative delegation,” Griffin added.

Griffin pointed out that Congress directed the Occupational Safety and Health Administration to set necessary standards for public health in the workplace. The administration, which has significant experience in health and safety, has the discretion to determine those standards.

“The agency’s standards must still be reasonably needed—that is, not more or less stringent than is needed to respond to, but not eliminate, a safety risk in the workplace,” he added. “These standards do not exist in a vacuum: They must further the policy objectives of the act, thereby fitting within the ‘hierarchy’ developed by Congress.”

The 6th Circuit’s decision is consistent with other rulings, including by the U.S. Court of Appeals for the District of Columbia Circuit and the 7th Circuit at Chicago.

U.S. District Judge John Nalbandian disagreed, writing in his dissenting opinion that an act of Congress could be deemed to be an unconstitutional delegation of its power.

In the Occupational Safety and Health Act, “Congress granted the secretary of Labor nearly unfettered discretion in fashioning permanent occupational health and safety standards,” Nalbandian wrote.

Neither party in the case responded to Bloomberg Law’s requests for comment.

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