On August 21, the US Department of Labor finalized a rule aimed at constraining OSHA and MSHA (among other DOL agencies) from using or issuing guidance documents easily. The new rule requires the agency to undertake a “notice and comment” proceeding before issuing significant guides or guidance, which slows down the ability to respond to emergent hazards such as COVID-19, or to readily modify existing guidance based upon new scientific or technical information. The rule could also impact such issuances as OSHA handbooks, CPL documents and Letters of Interpretation, in some instances.
The final rule defines “significant” guidance as that involving impacts greater than $100 million. There is also a process for private entities to petition for existing guidance to be modified or withdrawn. The agencies within DOL are now forbidden from taking any enforcement action based on “mere non-compliance with guidance documents.” This could complicate COVID-19 enforcement, in terms of what information could be imputed to employers under OSHA’s General Duty Clause.
The rule, “Prompting Regulatory Openness Through Good Guidance Rule,” conforms DOL policy protocols with President Trump’s October 9, 2019, Executive Order 13891, which calls on agencies to make guidance “non-binding, crafted with public input” and readily available to the public. If guidance documents did not appear on an agency’s website, they were no longer in effect as of October 2019. All DOL guidance must be posted on a new agency website. The DOL rule directs its agencies to avoid using mandatory language, such as “shall” “must” or “required.”
There will be narrowly tailored situations where guidance could still be invoked by OSHA or MSHA in enforcement actions, such as to show that a person or employer had the requisite knowledge of the law, or to show consistent enforcement positions by an agency over time. The guidance can also be referenced in other legal proceedings to show an industry standard of care.
One potential snafu for DOL is that, while this was published as a final rule, the agency missed the step of issuing a proposed rule – a necessary step under the Administrative Procedure Act – although DOL could have issued a concurrent direct final rule and proposed rule under the APA; if the proposal received no adverse comment, a direct final rule can then take effect in 30 days. Given this misstep, litigation over the final rule remains possible.