OSHA’s Authority to Regulate Workplace Heat

The Occupational Safety and Health Administration (“OSHA”) recently announced its intention to begin a standard-setting process on workplace heat exposure. Since OSHA began public deliberations about regulating occupational heat hazards, the Supreme Court issued two decisions that, according to some, could pose challenges to the agency’s authority to regulate in this area. This article considers two questions:First, does the Supreme Court’s recent decision in NFIB v. OSHA, striking down the OSHA Covid-19 emergency temporary standard (“ETS”), restrict the agency’s authority to issue an occupational safety and health standard protecting workers from occupational heat exposure?Second, does the Supreme Court’s decision in West Virginia v. EPA, establishing the major questions doctrine (“MQD”), impact OSHA’s authority to issue an occupational safety and health standard protecting workers from occupational heat exposure?This article concludes that neither NFIB v. OSHA nor West Virginia v. EPA should pose a barrier to OSHA’s ability to regulate and protect workers from occupational heat exposure. The nature of heat as a hazard, OSHA’s regulatory history, and the likely design of an OSHA heat standard make the potential regulation readily distinguishable from the OSHA Covid-19 ETS that the Supreme Court invalidated. For similar reasons, the MQD, formally announced in West Virginia, should not pose a threat to an OSHA heat standard, as such a standard would be in line with previous OSHA regulatory action, not economically and politically significant, and well within the agency’s congressional authorization.This is a draft, accepted and forthcoming in the American Bar Association's Journal of Labor and Employment Law