The Occupational Safety and Health Review Commission has a full panel again. Because it now has a “quorum”, or the minimum number of commissioners needed to take official action, the Commission will begin working through the backlog of OSHA cases on its docket. This is good news for stakeholders in the OSHA enforcement scheme. The Commission provides helpful clarity, guidance, and interpretation—even when it rules against the employer—which enables employers to better understand their safety obligations.
An appeals court recently clarified an employer's obligation to monitor respiratory hazards. Employers must evaluate the workplace for respiratory hazards whenever there is the potential for overexposure of employees to contaminants. Significantly, the appeals court applied the Supreme Court’s Kisor v. Wilkie decision, which purports to limit OSHA’s discretion in interpreting its own regulations, to an OSHA regulation for the first time.