When OSHA proposed its latest version of the communication standard for hazardous chemicals in the workplace, it planned to give the standard full preemptive effect. Federal law prescribes the requirements for manufacturers to communicate hazards in their workplace, and the proposed regulation would allow no state law, regulation or litigation to hold manufacturers to a different standard.
That changed when OSHA issued the final rule in March of 2012. The rule preempts state laws and regulations, but does not preempt litigation. Consequently, trial lawyers will be able to file state failure-to-warn claims against companies even though the companies are in compliance with the very restrictive federal requirements.
The American Tort Reform Association filed suit, alleging that this narrowing of the preemption provision exceeded OSHA’s authority and the public was not provided an opportunity to comment on OSHA’s change of plans. The NAM filed an amicus brief support the challenge, arguing that we should have been afforded an opportunity to comment on the change in the rule’s preemption language, so that we could describe any conflicts there may be between state tort claims and the requirements of the hazard communication rule. In addition, we argued that OSHA’s decision contradicted firmly established law that state litigation is preempted by federal occupational safety regulations. Otherwise, manufacturers would be subjected to duplicative and possibly counterproductive regulation, whether through specific state laws or tort laws as applied through litigation in the courts.
Our brief included situations where manufacturers could be subjected to conflicting requirements between federal and state requirements, or requirements that might vary from state to state. For example, the federal regulation imposes a mandate to use the words “danger” or “warning” in different situations, and requires the use of specific pictograms for certain hazards. Any different requirement that a state judge or jury might feel would better warn about hazards would subject a manufacturer to tort liability for following the federal rule.
On 12/27/13, the court denied the petition, but in doing so provided language to make sure that OSHA does not try to use the new rule against preemption to improperly sway judicial rulings. The court concluded that both ATRA and OSHA “agree that OSHA has no authority to determine the preemptive effect of the OSH Act.” Rather, OSHA's statement on the preemptive effect in this instance is merely an “interpretive statement” that does not have the force of law. The result is that the standard is merely advisory since interpretive rules do not have the force and effect of law; and they are not accorded that weight in the adjudicative process.