Whoops! OIG Says OSHA Lacked Proper Procedures for Some Guidance Documents

Between 2013 and 2016, OSHA issued guidance documents without considering whether a formal rulemaking was required under federal law, according to a recent report from the Labor Department’s Office of the Inspector General (OIG).

The OIG found two problems with many guidance documents issued during that period:

• OSHA had no written procedures for determining whether issuing a guidance document met the requirements of the Administrative Procedures Act and Occupational Safety and Health Act; and
• Agency staff often failed to follow procedures the agency did establish.

Court Challenges

OSHA issued 296 guidance documents between October 1, 2013 and March 18, 2016. Four were challenged in federal courts by stakeholders who alleged that those documents created new regulatory burdens. Stakeholders only filed five suits challenging guidance documents prior to 2013.

The four documents challenged were:

• A February 21, 2013, letter of interpretation stating that employers at nonunion workplaces must allow a labor union official to represent employees and accompany agency staff during an inspection; which the agency rescinded in response to a lawsuit;
• A June 5, 2015, standard interpretation letter adopting a one-percent test to determine whether the Process Safety Management (PSM) standard applies to chemicals listed in the standard’s appendix, which the agency rescinded after a negotiated settlement of a lawsuit alleging the letter expanded the scope of the standard;
• Another June 5, 2015, standard interpretation letter limiting how employers should interpret recognized and generally accepted good engineering practices in complying with the PSM standard, which OSHA rescinded as a result a negotiated settlement of a lawsuit alleging the letter elevated industry standards to the level of regulations; and
• A July 22, 2015, standard interpretation letter limiting the PSM standard’s exemption for retail establishments, which a court vacated, ruling the agency failed to follow the OSH Act’s procedural requirements.

OIG Findings on Selected Guidance

The OIG randomly selected 57 guidance documents, in addition to the four challenged in federal court, to review.

For 80 percent of the documents, 46 of 57, OIG found OSHA personnel did not follow written procedures and maintain records that the documents complied with agency criteria.

The agency criteria for guidance documents are:

• Consistency. Documents must be consistent with existing policy. 65% failed to meet this criterion.
• References. Documents must explicitly refer to regulations and other guidance documents. 12% failed to do so.
• Review and clearance. Documents must be reviewed internally and externally for program- and policy-related implications. 40% were not.
• Disclaimer. An appropriate disclaimer statement must be included. 26% failed to include one.
• Approval. An authorized issuing official must approve guidance before its release. 53% failed to include an approval.

Rule vs. Guidance Document

An OSHA rulemaking takes an average of seven years to complete, while a guidance document typically can be issued within a year. In the rulemaking process, the agency must research the potential impact of a policy and conduct public outreach. A rulemaking requires answering four questions:

• How does the problem affect worker safety and health?
• What are the risks under different conditions?
• What are the technical options for fixing the problem?
• How much will it cost employers to fix the problem?

The agency also must request information from stakeholders. This preliminary process usually takes one to three years. It is not required for issuing guidance documents.

OSHA also must publish proposed rules, hold public hearings, and accept public comment. This step can take six months to two years. The agency circulates guidance documents internally and typically completes the process in 15 days.

Guidance documents, on the other hand, may not create new compliance obligations and are not legally binding. Rather, their goal is to clarify existing standards. The OIG concluded that by failing to implement and follow consistent procedures, OSHA risked issuing guidance that may have changed existing rules in violation of the Administrative Procedures Act. Incorrectly issued guidance, the OIG noted, could create expensive compliance burdens for employers without the protections of the notice and comment portion of the rulemaking process.

OSHA Response

OSHA’s administrator, Acting Assistant Secretary Loren Sweatt, acknowledged there were significant lapses in guidance documents issued in the 2013–2016 period. The agency is reviewing its procedures and “working aggressively” to improve accountability and documentation for issuing guidance documents.

Employers should note that the OIG only reviewed 57 of 296 issued in the 2013–2016 period. Other guidance documents released during that period may also have problems. Agency guidance documents include booklets, directives, fact sheets, guides, hazard alerts and hazard bulletins, letters of interpretation, manuals for agency personnel, memoranda for Regional Administrators, pamphlets, posters, reports, and safety alerts.