Judicial review of OSHA emergency standards
Judicial review of OSHA (Occupational Safety and Health Administration) emergency standards has played a critical role in shaping how the courts interpret and limit the powers of administrative agencies under the Occupational Safety and Health Act of 1970. Emergency Temporary Standards (ETS) are issued under 29 U.S.C. § 655(c), which allows OSHA to bypass normal rulemaking procedures when workers are exposed to “grave danger” from exposure to toxic substances, new hazards, or agents that are physically harmful or new.
The courts have evaluated these ETS under two main criteria:
Existence of a “grave danger”.
Necessity of the ETS to protect employees from that danger.
Below is a detailed explanation of key cases where courts have reviewed OSHA’s emergency standards:
1. Asbestos Information Association v. OSHA, 727 F.2d 415 (5th Cir. 1984)
Background:
OSHA issued an ETS lowering permissible exposure levels to asbestos. The Asbestos Information Association challenged the standard, arguing that the agency had not demonstrated a grave danger requiring immediate action.
Court’s Ruling:
The Fifth Circuit vacated the ETS, holding that OSHA had not demonstrated the required “grave danger.” The court emphasized the importance of clear evidence and found that while asbestos is undoubtedly hazardous, OSHA failed to provide sufficient evidence that the existing exposure levels constituted a grave danger necessitating emergency action.
Significance:
This case set a high evidentiary threshold for OSHA to justify an ETS. The court required OSHA to demonstrate not just potential harm but immediate and grave danger, distinguishing between long-term regulatory need and emergency circumstances.
2. Florida Peach Growers Association v. Department of Labor, 489 F.2d 120 (5th Cir. 1974)
Background:
OSHA issued an ETS prohibiting the use of a pesticide (DBCP) due to potential reproductive harm. Florida Peach Growers challenged the action.
Court’s Ruling:
The Fifth Circuit upheld the standard. The court found that OSHA met its burden in showing a “grave danger” and that the pesticide presented immediate risks to workers’ health.
Significance:
This case showed that courts would uphold an ETS if OSHA presents credible evidence of imminent and serious harm, even in the face of scientific uncertainty. It demonstrated some deference to OSHA’s expertise in technical and scientific matters.
3. BST Holdings, L.L.C. v. OSHA, 17 F.4th 604 (5th Cir. 2021)
Background:
In response to the COVID-19 pandemic, OSHA issued an ETS requiring employers with 100 or more employees to mandate vaccination or weekly testing. Numerous businesses and states challenged the ETS.
Court’s Ruling:
The Fifth Circuit stayed enforcement, calling the ETS a "work-around" for a nationwide vaccine mandate. The court criticized OSHA for exceeding its statutory authority and found the mandate too broad.
Key Points in Ruling:
COVID-19 is not an occupational hazard unique to workplaces.
OSHA’s ETS was seen as overly intrusive and beyond the agency's emergency powers.
The court expressed concern about constitutional overreach and separation of powers.
Significance:
This case reasserted judicial limits on OSHA's emergency authority. It demonstrated judicial skepticism toward broad-based, national mandates under the guise of emergency workplace safety rules.
4. In re: MCP No. 165, Occupational Safety and Health Administration Interim Final Rule: COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, 20 F.4th 264 (6th Cir. 2021)
Background:
This case followed BST Holdings. The Sixth Circuit was randomly selected to hear the consolidated challenges to the OSHA COVID-19 ETS.
Court’s Ruling:
The Sixth Circuit lifted the stay imposed by the Fifth Circuit. It held that OSHA acted within its statutory authority and that the ETS was necessary to protect workers from a grave danger posed by COVID-19.
Significance:
The Sixth Circuit gave substantial deference to OSHA's findings and its public health judgment. However, this decision was later overruled by the Supreme Court in NFIB v. OSHA.
5. National Federation of Independent Business (NFIB) v. Department of Labor (OSHA), 595 U.S. ___ (2022)
Background:
The Supreme Court reviewed the COVID-19 ETS on vaccine/testing mandates for large employers after the Sixth Circuit reinstated it.
Court’s Ruling:
The Supreme Court blocked the OSHA ETS in a per curiam opinion. The majority held:
OSHA lacked clear Congressional authorization to impose such sweeping regulations.
COVID-19 is not a workplace-specific hazard; it's a universal risk.
The ETS exceeded OSHA's authority by addressing public health rather than workplace safety.
Dissent:
The dissent (Breyer, Sotomayor, and Kagan) argued that OSHA was acting within its authority to protect workers from a deadly pandemic and that the Court was substituting its judgment for that of health experts.
Significance:
This was a landmark case for administrative law and nondelegation principles. The Court underscored limits on agency power, emphasizing the “major questions doctrine”—which requires clear Congressional authorization for significant regulatory actions.
6. AFL-CIO v. OSHA, No. 20-1158 (D.C. Cir. 2020)
Background:
During the early months of COVID-19, the AFL-CIO petitioned the D.C. Circuit to compel OSHA to issue an ETS to protect workers from COVID-19 exposure.
Court’s Ruling:
The D.C. Circuit denied the petition, holding that OSHA’s decision not to issue an ETS was not arbitrary or capricious. The court deferred to OSHA’s discretion under Chevron deference, finding no basis to force the agency to act.
Significance:
This case clarified that OSHA has discretion not to issue an ETS and that courts will defer to agency non-action in some circumstances.
Key Doctrinal Themes Across These Cases:
| Legal Concept | Application |
|---|---|
| Grave Danger Standard | Courts require clear, scientific evidence showing immediate and significant risk. |
| Necessity of ETS | OSHA must demonstrate that the standard is essential—not just helpful. |
| Deference to OSHA | Varies; some courts defer (e.g., Florida Peach), others skeptical (BST, NFIB). |
| Major Questions Doctrine | Invoked by Supreme Court to limit broad agency actions affecting large parts of society. |
| Chevron Deference | Still applied in AFL-CIO v. OSHA, but increasingly questioned in recent years. |
Conclusion:
Judicial review of OSHA's emergency standards reflects an evolving balance between deference to agency expertise and judicial concern for statutory and constitutional limits. Courts scrutinize whether OSHA has:
Provided credible evidence of a grave danger.
Justified the necessity of an emergency rule.
Stayed within the bounds of statutory authority.
While earlier courts tended to defer to OSHA in health matters, recent cases—especially involving COVID-19—reflect a judicial trend toward curbing broad regulatory power without explicit Congressional backing.
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