September 16, 2024 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.

By: Jamie Spataro

During the four-decades-long era of the Chevron doctrine, when an agency rule was challenged, courts afforded broad deference to agencies with respect to their interpretation of federal statutes when promulgating formal regulations, which are subject to publication in the Federal Register and a notice and comment period.  Courts traditionally afforded less deference to agency interpretation letters, enforcement memoranda and informal guidance.  Where a statute was found to be silent or ambiguous with respect to an issue, courts were bound by Chevron to resolve the issue in favor of the agency’s reasonable interpretation of the statute. 

On June 28, 2024, in Loper Bright Enterprises v. Raimondo, Secretary of Commerce, the U.S. Supreme Court overturned Chevron, abruptly ending an era of substantial agency deference.  In Loper, the Court held that the Administrative Procedure Act requires courts to exercise their own independent judgment when reviewing an agency action, and courts may not defer to an agency’s interpretation of the law simply because a statute is ambiguous. 

Loper levels the playing field in the context of challenges to agency actions, strips agencies of their reliance upon automatic deference, and requires courts to exercise their own independent judgment in deciding whether an agency has acted within its statutory authority when making rules and issuing interpretive guidance.

OSHA’s Rulemaking and Interpretive Authority Post-Chevron

The Court’s decision in Loper will meaningfully impact OSHA’s rulemaking and interpretive authority.  Notably, it is likely that OSHA’s traditionally broad rulemaking authority will be substantially curtailed, requiring the agency to craft narrowly-tailored regulations that closely track the statutes they seek to implement in order to survive a legal challenge to its regulations.  Likewise, OSHA regulations that have already been published will be open to more intense scrutiny by courts, inviting legal challenges to existing regulations, such as OSHA’s recently-issued Worker Walkaround Representative rule, which grants non-affiliated union representatives access to an employer’s worksite.  OSHA’s proposed rules are also vulnerable to increased scrutiny in light of Loper, such as the agency’s proposed heat standard, currently open for public comment.  The risk of court challenges to a future final heat illness rule could prompt OSHA to reconsider its broad and potentially burdensome proposed rule before it is finalized.

Employers now have an increased likelihood of success in challenging OSHA’s most broadly-enforced regulations, such as the agency’s widely-cited General Duty Clause to issue violations in the absence of a specific standard, as well as its recordkeeping standard under which the agency has enjoyed a favorable burden-shifting framework that has arguably resulted in an increasingly expansive presumption of work-relatedness under the agency’s liberal construction of the “work environment.”  Indeed, OSHA’s long-standing practice of issuing interpretive guidance, which was previously entitled to only some agency deference, likely will be afforded little to no such deference in the absence of a clear legislative mandate post-Chevron.  After Loper, OSHA’s interpretation letters can now be challenged to the extent the agency’s guidance on its face exceeds Congress’s explicit grant of statutory authority.  Without any entitlement to Chevron deference, particularly where Congress is silent on an issue, a court may now employ its own best reading of the statute, freeing up the court to evaluate OSHA’s guidance objectively to say what the law is.

What Can Employers Do Now?

Now that federal agencies are no longer entitled to Chevron deference, employers should identify any OSHA regulations or interpretations that negatively impact their operations, or which are being used as the basis for enforcement, and evaluate those rules and guidance against the statutes under which they purport to be authorized.  If it appears on its face that the agency is exceeding its statutory authority, a challenge to the agency action in federal court could be considered.  Indeed, just three days after deciding Loper, on July 1, 2024, the Court further enhanced a plaintiff’s ability to challenge a federal agency action by expanding the timeframe within which a plaintiff may sue, ruling that the statute of limitations to challenge an action does not begin to run until the plaintiff is injured by the action.¹

One important limitation of Loper is that it impacts federal agencies only.  While Loper does not expressly impact state agencies, to the extent state courts have adopted Chevron-like deference in evaluating challenges to the state’s agency actions in the past, it may become more difficult for those courts to continue justifying such deference, with the traditional federal persuasive authority no longer available to cite as support for such an approach.

Jamie Spataro is a shareholder in Littler Mendelson PC’s Pittsburgh office. A member of the firm’s Occupational Safety and Health Practice Group, Jamie’s practice encompasses a wide range of workplace safety and health issues.

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

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