OSHA’s ‘sub-regulatory’ actions ignore Congress, stakeholders claim

Washington – Is OSHA overstepping its authority and ignoring congressional mandates? This question was debated at a Feb. 4 House Workforce Protections Subcommittee hearing, during which subcommittee chair Rep. Tim Walberg (R-MI) suggested the agency has circumvented the public rulemaking process through several actions that “dramatically” changed existing policies.

Examples given by Walberg include a letter of interpretation allowing union representatives to accompany OSHA inspectors during a workplace walkaround, and a guidance document allowing the inspection of grain facilities on family farms even though farms with 10 or fewer employees are exempt from OSHA enforcement.

However, Randy Rabinowitz, a Washington-based attorney speaking for herself at the hearing, argued that OSHA posed no new legal burdens, and the agency’s recent actions clarified long-standing policies. Specifically, Rabinowitz said, the letter of interpretation reiterates workers’ right to choose a non-employee to represent them during a walkaround inspection, and that the non-employee could be affiliated with a union or a community organization.

Attorney Bradford Hammock, representing the U.S. Chamber of Commerce, disagreed, arguing that such “sub-regulatory” actions change policy with little transparency by avoiding the traditional public-comment approach required for regulations. These actions will appear on OSHA’s website with little to no advance notice, Hammock said.