What Employers Need to Know About OSHA Formal Letters of Interpretation

Presented by Kate McMahon, Eric Conn, and Scott Hecker

OSHA standards are not always written with the greatest of clarity, leaving employers, employees, OSHA inspectors, and judges having to search for the most reasonable interpretation of the regulatory text.  One tool to aide those stakeholders in understanding the true meaning of standard is a formal Letter of Interpretation (LOI).  These LOIs are issued by OSHA’s Directorate of Enforcement and represent the agency’s official view of what an OSHA standard specifically requires or prohibits and in what circumstances it applies.  Any interested stakeholder may request an LOI from OSHA in writing, and OSHA will respond (eventually) and publish its response on OSHA’s website.

OSHA LOIs have always carried extraordinary weight in disputes about OSHA citations.  Indeed, for the half-century that the Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council was the law of the land, OSHA LOIs were entitled to deference even if they did not represent the most logical interpretation of the relevant standard, as long as they were merely reasonable.  The Supreme Court has done away with Chevron deference, but LOIs still represent OSHA’s expectations.

LOIs are also important because they can be used offensively by cited employers to defend their conduct and assert they lacked fair notice that the OSHA standard applies as-cited.  Rather than waiting for citations, employers can also be proactive, and seek favorable interpretations from OSHA to affirm OSHA agrees with the interpretation the employer has been following.

Participants in this webinar will learn:

• What OSHA Letters of Interpretation are (and what they are not)
• How LOIs can be used by OSHA and employers in contested citation matters
• How employers can effectively obtain favorable LOIs from OSHA