Will OSHA's heat rule survive the demise of the administrative state?
And happy first birthday to this project!
Welcome back to Work Climate, and thanks a million to everyone who has followed this modest—yet enormously rewarding—series of scribblings for a full year now. I start work in a week, so I’ll reassess then the form and frequency of my blogging. Thankfully, though, there’s a juicy topic we can finally dig into today: The Occupational Safety and Health Administration (OSHA) has released their long-awaited proposed rule, Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. Coming in at a cool 376 pages (which I’m sure I’ll read, eventually…), the rule would “require [most] employers to create a plan to evaluate and control heat hazards in their workplace,” including a series of protective mandates triggered at different temperatures. Those details—and the efficacy of accompanying enforcement—will matter enormously, of course, if they ever come into effect. But, as a starting point, I’m curious about what might yet prevent this regulation from becoming law. First, a quick review of what I learned on Wikipedia this week.
An OSHA-like agency was first proposed in the late 1960s as part of Johnson’s Great Society. However, the Occupational Safety and Health Act (OSH Act) wasn’t passed until 1970 under Nixon, one of several transformative social and environmental welfare bills that were the product of, bizarrely, bipartisan compromise. As a result of the horse trading, Republicans circumscribed some of OSHA’s rulemaking abilities, while Democrats won the inclusion of the (in)famous General Duty Clause, requiring that each employer:
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; [and]
(2) shall comply with occupational safety and health standards promulgated under this Act.
This incredibly broad language made OSHA one of the federal government’s most powerful agencies—at least on paper—and a perennial target of anti-regulatory crusaders. It has so far survived most legal challenges to its authority, however, perhaps in part because it wields such authority with a fairly light touch; employer penalties from OSHA are notoriously low, even as the agency has likely saved millions of workers from severe injury and death.
Heat has long been recognized as a hazard falling within OSHA’s purview—the agency has considered regulating heat exposure for over 50 years. But, unfortunately, the fate of OSHA’s proposed rule will not be governed by the Supreme Court of the 1970s, but rather of the 2020s (which, if you haven’t been paying attention to the news in recent years, is a pretty bad one).
50 Ways to Leave Your Workplace Environment Unregulated
Imagine you are an employer or labor contractor who would rather save a few bucks than protect tens of millions of workers in the United States from dangerous levels of heat. For some of you (Royce…), this will be an easy exercise; for the rest of you, just bear with me. Definitely the first thing you should do is support Donald Trump, as finalizing OSHA’s rule is absolutely dependent on consecutive Democratic administrations. If that fails, however, you should not lose all hope, as there is a decent chance SCOTUS’ 6-3 conservative majority will still come to your rescue. Let’s consider how.
Chevron and Its Discontents
This winter, I had the experience—all-too-familiar to law students of this judicial era—of spending months learning about a bedrock series of cases that were entirely dispensed with come summer. For over forty years, federal courts were accustomed to deferring to agencies’ reasonable legal interpretations of ambiguous statutes. This Chevron framework has sustained tens of thousands of regulations, including important ones from OSHA; as I’ve written about before, the (imperfect) right to refuse dangerous work as a corollary of the General Duty Clause is one such Chevron-reliant protection.
Following SCOTUS’ June ruling in Loper Bright, though, an already enfeebled Chevron is now as dead as I hope its namesake will be one day, and no one has any real idea of what analytical scheme will replace it in coming years. Thus, it is difficult to know what all this unprecedented roiling of legal waters will mean for heat rules, but let me make an irresponsible guess anyhow.
Although killing Chevron will likely go down as one of the stupidest and most harmful things the Roberts Court has done, I think it will have a relatively mild impact on OSHA, at least in comparison to other bureaucracies like the Environmental Protection Agency. That is because the OSH Act is far less ambiguous than, for example, the Clean Air Act (another Nixon-era win). There should be fewer fights, therefore, over complex statutory interpretation questions, i.e., it will be a further stretch for courts to insist that OSHA misunderstands the plain meaning of its own legislative mandates.
Instead, it is more likely that a conservative court might hold that said mandate is too large, either generally or with respect to a particular issue.
De-delegation
The non-delegation doctrine (NDD) is supposed to ensure that Congress does not give away too much of its mystically imbued lawmaking power, such as was ordained by the Founding Fathers. It sounds powerful, but has been something of an afterthought for nearly a century—NDD only successfully struck down two New Deal laws before FDR made the Court fall in line. Since then, courts have uniformly found that Congress has provided agencies with a sufficiently “intelligible principle” to guide their rulemaking processes.
To bring back NDD, then, you would have to want to undue decades of pro-social legislation protecting the environment, workers, and consumers. Crazy, right? Well, yes, but also increasingly in vogue. Consider a recent lawsuit brought by Allstates Refractory Contractors challenging the entirety of OSHA’s powers. On its face, this suit was about a small contractor who got angry at the government for having the temerity to fine him after one of his workers got injured. Considering the plaintiff was represented by Don McGahn—Trump’s former White House Counsel and proud partner at Jones Day—though, his challenge can be better understood as part and parcel of the conservative legal movement’s continuing lust for blood, via deregulation.
This is the sort of fringe case which would have been routinely dismissed prior to the appointment of a slew of Trump judges. Today, though, it was only stopped on the merits 2-1 at the appellate level. Thankfully, SCOTUS refused to review that ruling, but Justices Thomas and Gorsuch helpfully took the time to remind us all that they, at least, are on board with these efforts. I take this to mean that OSHA is safe, for now, from being totally dismantled, but that we are only 3 votes away from returning to a pre-OSH Act world, in which tens of thousands of people might be killed annually while on the job.
The Major Headaches Doctrine
Finally, we enter the Twilight Zone of administrative law, where our future is most subject to the mystical whims of would-be sorcerers in robes. The Major Questions Doctrine (MQD) is so difficult to explain that even its chief proponents on the High Court cannot agree on its origins, let alone come up with anything like a predictable standard for its use. MQD means, probably, that if Congress wants an agency to touch on questions of “vast economic and political significance”, it must be super duper clear. This quote from West Virginia v. EPA (another all-timer for all the wrong reasons, if you care about the climate) demonstrates the level of abstraction we’re dealing with here:
Extraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle device. Nor does Congress typically use oblique or elliptical language to empower an agency to make a ‘radical or fundamental change’ to a statutory scheme.
Stirring stuff. My friend and former classmate Ling has a great law review article exploring how lower courts are grappling with MQD, but I would bet even a scholar of her caliber has no idea how it may interact with a post-Chevron legal landscape. I still have some hope, though, that OSHA’s heat rules will be relatively insulated from MQD because Congress’ stated intent in passing the OSH Act was, indeed, vast—“to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.”
This doesn’t read as “modest words, vague terms, or subtle device” to me. Then again, I don’t even know if I’ve passed the bar yet, so let’s leave these things to the professionals. If the de-regulators have shown us anything, it’s that when there’s a will—and a few billionaire-cozy judges—there’s a way.
To end this anniversary post on a more hopeful note, you can comment on OSHA’s proposed heat rule until the end of the year! The docket has only been open for a few days, so there are likely thousands of comments left to be written, but I’d like to share a few of the early ones that I found moving…
From Jordan in Pittsburgh:
As a former restaurant worker, I urge the Occupational Safety and Health Administration to move forward with this proposed rule. We are long overdue for a national heat standard to protect all workers. As someone who has personally experienced what it was like to work in a hot commercial kitchen and endure extreme heat for long periods of time, I know that providing rest & hydration breaks should be the law. Many restaurants lack the necessary equipment, such as functioning ventilation hoods or air conditioning, to keep the restaurant, especially in the back-of-house, at a reasonable temperature. Restaurants should be required to invest in the equipment to make their restaurants a safer place to work and provide rest & hydration breaks when internal temperatures rise above 80 degrees.
From Jennifer in Florida:
As a Safety Administrator and Worker's Compensation Coordinator for a construction company in Florida, I cannot stress enough how vital the proposed rule is, now cannot express enough how important it is for this proposal to see success. Heat Safety, especially with evidential proof of rising temperatures, is a critical necessity that can no longer be overlooked or delayed any longer. With lack of support on a state level, it is up to the federal level to step in and pass regulations that will protect the people that we depend on for many goods and services. By foregoing these regulations, we are neglecting these hard-working people. It is hot in Florida. It is humid in Florida. The heat index has risen over 100 degrees Fahrenheit every day for most of summer. Please pass these regulations!
And from Jessie in Atlanta:
As a restaurant worker, I am URGING the Occupational Safety and Health Administration to approve this new rule for indoor heat protection—our industry desperately needs it now!
I’ve worked in the service industry for 15 years and have dealt with the harmful effects of indoor heat many times. In several restaurants, when the air conditioning broke, the owners wouldn’t fix it. They focused on keeping guests comfortable with misters and cool air, but the staff, especially those working in the kitchen, were left to suffer in the heat. When I overheated, I wasn’t allowed to take breaks, even though I needed time to cool down.
Just last month, I experienced extreme headaches due to dehydration from the indoor heat while trying to keep up with the fast pace of service. I barely had time to sit down and drink water, and management didn’t provide support to give my coworkers and me a chance to hydrate and reset. I ended up working through the rest of my 8-hour shift with a pounding headache. This affected my ability to work well, drained my energy, and ultimately impacted my tips.
This new rule will help protect workers like me by making sure that our workplaces are safer. It’s simple—indoor heat protection will save lives, create better, safer workplaces and improve the lives of restaurant workers. We need this now!
Our J-named friends are doing democracy well, but they’re sure to be met with fierce resistance from industry groups. If you’ve read this far, then, consider joining them, and thank you as ever for enabling my writing habit :)
Congratulations on a year of Climate Justice, and thank you for this issue’s insights, and the Paul Simon allusion.