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Fourth Circuit Denies Industry Challenge to OSHA Enforcement Directive

    Client Alerts
  • February 25, 2011

From time-to-time, the Occupational Safety and Health Administration issues Enforcement Directives to its field offices. These Directives instruct OSHA inspectors on how certain health and safety standards should be interpreted and implemented in the course of workplace audits. These Directives also provide employers with guidance regarding how OSHA will react to certain workplace safety practices.

In recent years, OSHA under the Obama Administration has issued a number of Enforcement Directives that reverse long-standing positions on the interpretation of a number of safety standards. Last week, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) concluded that affected industries cannot directly challenge changes to OSHA Enforcement Directives in federal court.

In Steel Erectors Assoc. v. OSHA, an industry group sued OSHA after it issued a Directive eliminating an enforcement position that certain violations of construction safety standards involving fall protection would be considered de minimis and would not carry any penalty. The plaintiff charged that OSHA's reversal of its enforcement position allows immediate federal appellate court challenge under the OSH Act.

The Fourth Circuit rejected this challenge, dismissing the suit for lack of subject matter jurisdiction. The court distinguished Enforcement Directives from changes to underlying safety standards, because in the former case, the affected safety practices do not change. Changes to the way OSHA enforces the standards are not subject to immediate appellate review. While employers can legally challenge changes to Directives, they must go through more time-consuming administrative appeal procedures before federal courts will consider the matters.