Earlier this month, in a rare en banc decision, the full Eighth Circuit Court of Appeals held eight to four that the federal Occupational Safety and Health Administration exceeded its authority by interpreting a safety standard to require employers to protect employees against hazards not contemplated in the regulation. This decision may cause other federal courts to similarly restrain OSHA from broad rule interpretations made in lieu of promulgation of changes to the safety standards themselves.

In Loren Cook Co. v. Perez, OSHA cited the employer for violating its machine guarding safety standard after a high speed lathe ejected a part that struck and killed an employee. The regulation used by OSHA in the citation requires employers to protect against certain described hazards relating to normal functioning of the machine. The employer contended that the rule did not place employers on notice that OSHA also requires them to provide guarding against hazards associated with the catastrophic failure of the machine.

The Eight Circuit panel disagreed with a federal administrative law judge, concluding that OSHA had the authority to expansively interpret the regulation to include hazards neither listed nor similar to those included among the examples provided to employers in the rule. The full Eighth Circuit disagreed, reinstating dismissal of the citations. The court acknowledged OSHA’s authority to interpret its own rules, but stated that this authority ends when the agency simply ignores unambiguous language contained in the safety standard.

In recent years, OSHA has increasingly relied on expansive and often novel interpretations of its safety rules as an alternative to changing the standards through the rulemaking process. If followed by other federal courts, this decision could have the effect of curtailing this practice, forcing the agency to conduct the longer and more complex notice and comment process to change major rule interpretations. Given the importance of this issue to the agency, OSHA may seek U.S. Supreme Court review of the Eighth Circuit decision.