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In an anticipated and significant decision, the U.S. Court of Appeals for the District of Columbia Circuit rejected all of the construction and other industries’ challenges to the Occupational Safety and Health Administration’s (OSHA) new Respirable Crystalline Silica in Construction Standard that went into effect on Sept. 23, 2017 (29 CFR 1926.1153). In its decision, issued on Dec. 22, 2017, a three-judge panel said OSHA had shown that the reduction in the permitted exposure levels for silica dust would reduce a significant risk of material health impairment to industry workers and that its new rule was technologically and economically feasible. This means that the new silica dust standard remains in effect for the construction industry and all contractors must be sure to comply with the new strict standards.

The current challenges to OSHA’s new silica standard began in early 2016 and the litigation ultimately came before the U.S. Court of Appeals for the District of Columbia Circuit. In the case, the Associated General Contractors of America (and other industry groups) challenged the new standard, arguing that there was not enough evidence to support OSHA’s finding that limiting workers’ silica exposure to the level set by the new rule reduced a significant risk of material health problems in workers, as well as whether there was enough evidence to support OSHA’s finding that the silica rule is technologically and economically feasible for the foundry, hydraulic fracturing and construction industries. The industry groups also challenged whether substantial evidence supported two ancillary provisions of the rule: one that allows workers who undergo medical examinations to keep the results confidential from their employers; and one that prohibits employers from using dry cleaning methods unless doing so is feasible. The court rejected all of the AGC’s and other industry groups’ challenges and upheld the new standard.

On another front, the North American Building Trades Unions and other trade groups argued that the new OSHA regulation does not go far enough to protect workers. The unions challenged two parts of the new silica rule: the requirement that medical surveillance for construction workers be provided only if the employee must wear a respirator for 30 days in a one-year period; and OSHA’s failure to include any medical removal protections.

The court rejected the unions’ challenge to the construction standard’s 30-day trigger for medical surveillance. However, the court did find that “OSHA failed to adequately explain its decision to omit medical removal protections from the rule and remand for further consideration of the issue.” In making its ruling, the court stated:

“We hold that OSHA was arbitrary and capricious in declining to require (medical removal protections) for some period when a medical professional recommends permanent removal, when a medical professional recommends temporary removal to alleviate (chronic obstructive pulmonary disease) symptoms and when a medical professional recommends temporary removal pending a specialist’s determination,” the court continued. “We remand to the agency to reconsider or further explain those aspects of the rule.”

The last resort for the construction and other industry groups is an appeal to the United States Supreme Court. However, it is uncertain whether such an appeal will be taken at this time. A full copy of the appellate court’s recent decision  is available here.

For additional information regarding OSHA’s new silica in construction standard and how your company can comply with the new requirements, please contact one of the attorneys listed below.
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