On June 28, 2024, the U.S. Supreme Court in Loper Bright Enterprises v. Raimondo, Secretary of Commerce, overturned its four-decade long Chevron doctrine announced by the Court in its landmark decision of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. The Chevron doctrine previously required courts to use a two-step process to evaluate a federal agency action. First, courts determined whether Congress had directly spoken to a particular issue, and if so, Congress’s express statutory mandate would control. If not, however, then courts granted deference to the agency’s reasonable construction of the statute to resolve any ambiguity that Congress left within the statutory language. 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.

Under Chevron, 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. Loper levels the playing field in the context of challenges to agency actions, strips agencies of their reliance upon automatic deference, and now 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 recent decision in Loper will have meaningful implications on OSHA’s rulemaking and interpretive authority. Going forward, 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 recently-released proposed heat standard, currently open for public comment. The specter 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 enhanced ability to challenge 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 Should Employers Do Now?

In the wake of Loper, employers should consider identifying 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 time frame 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 only impacts federal agencies. While Loper does not expressly impact state agencies, to the extent state courts have adopted Chevron-like deference in adjudicating 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 their approach.

Littler will continue to report on any significant developments related to Loper’s impact on OSHA’s rulemaking efforts. Should you have any questions or concerns about Loper’s impact on a particular OSHA regulation or interpretation, please contact your employment counsel.