By James L. CurtisBenjamin D. Briggs, Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  The DOL Inspector General recently issued an audit report that “OSHA Procedures for Issuing Guidance Were Not Adequate and Mostly Not Followed,” Report No. 02-19-001-10-105 (March 28, 2019).

The federal Occupational Safety and Health Administration (OSHA) regularly issues Standard Interpretations, Memoranda, and Safety and Health Information Bulletins to explain its positions with regard to the enforcement of safety regulations and unregulated hazards.  These documents are not controlling authority nor do they have the force of law, but they can be used by OSHA to show that an employer in an industry should have knowledge of a particular hazard, and/or demonstrate OSHA’s view of what is necessary for compliance.

The Department of Labor Office of Inspector General (OIG) recently conducted a comprehensive review of OSHA guidance documents issued from October 1, 2013 through March 18, 2016, some 296 guidance documents.  The OIG reviewed OSHA’s internal controls using a “random sample” of 57 guidance documents.  The OIG also reviewed stakeholder challenges to four OSHA guidance documents and relevant court decisions issued through April 25, 2017.

Through its investigation, the OIG found that “OSHA did not establish adequate procedures for issuing guidance,” and that “those procedures that were established were mostly not followed.”  While OSHA had procedures to provide reasonable assurance that guidance accurately reflected its rules and policies, it “lacked a procedure to determine the appropriateness of issuing a document as guidance, rather than as a rule.”  OIG determined that OSHA did not follow procedures for 80 percent of the sampled guidance.  Procedures OSHA often failed to follow included “determining if guidance was consistent with OSHA rules,” considering the reception of the guidance by stakeholders, and obtaining official approval to issue the guidance.

According to the OIG, “OSHA agreed that significant lapses occurred in the guidance issuance process, and it is working to rectify its existing procedures.”

Given this investigation, employers may be able to challenge OSHA’s reliance on guidance documents used to support aggressive interpretations of regulations and General Duty Clause citations.  This is another development in the ongoing debate between employers and OSHA on the use of guidance rather than promulgating rules in accordance with the Administrative Procedures Act.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.