When defending against the claims that I have brought on behalf of my clients, the chemical companies are usually represented by the best and brightest legal talent that money can buy. Even with 30 years of practice in this field, I continue to be amazed at the novel and creative arguments that defense counsel put forward to counter my cases.
One argument that particularly hit home with me was the allegation that, since 1985, OSHA’s Hazard Communication Standard (HCS or “HazCom”) at 29 CFR §1910.1200 preempted state common law failure-to-warn claims. This is the OSHA standard which requires warning labels and material safety data sheets for chemicals. The argument is wrong on two major grounds.
In 1969 and 1970, when the Occupational Safety and Health Act (OSH Act) was under consideration, the Republicans in the U. S. Congress were concerned that this proposed statute would create new private causes of action for injured workers. The Democrats in the Congress were concerned that the proposed legislation would set standards which would preempt existing causes of action for injured workers, such as personal injury claims and workers’ compensation claims.
The two sides reached a classic compromise in what became Section 4(b)(4) of the OSH Act, known as the “savings clause.” This provision saved existing causes of action from preemption while at the same time stated that the statute did not “enlarge” any common law or statutory rights of injured workers:
Nothing in this Act shall be construed to supersede or in any manner affect
any workmen's compensation law or to enlarge or diminish or affect in any
other manner the common law or statutory rights, duties, or liabilities of
employers and employees under any law with respect to injuries, diseases,
or death of employees arising out of, or in the course of, employment.
29 U.S.C. § 653(b)(4).
Every court considering the preemption issue has held that the OSH Act’s savings clause at Section 4(b)(4) preserves the injured worker’s common law rights to obtain compensation:
● Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 445, 51 L.Ed.2d 464, 97 S.Ct. 1261 (1977) (all "existing state statutory and common-law remedies for actual injury and death remain unaffected" by enforcement of OSHA standards);
● United Steelworkers v. Marshall, 647 F.2d 1189, 1235-1236 (D.C.Cir.1980), cert. denied sub nom. Lead Industries Association v. Donovan, 453 U.S. 913 (1981) (“when a worker actually asserts a claim under workmen's compensation law or some other state law, Section 4(b)(4) intends that neither the worker nor the party against whom the claim is made can assert that any OSHA regulation or the OSH Act itself preempts any element of the state law”);
● Millison v. E. I. du Pont de Nemours, 226 N.J. Super. 572, 594 (App.Div.1988), aff’d 115 N.J. 252 (1989) (citing Sec. 4(b)(4): “It is well settled that the OSHA regulations were intended neither to create nor to destroy common law rights and liabilities of employers or employees arising out of employment”);
● People v. Chicago Magnet Wire Corp., 126 Ill. 2d 356, 534 N.E.2d 962, 968 (Ill.1989) ("Congress expressly stated that OSHA was not intended to preempt two bases of liability that, like criminal law, operate to regulate workplace conduct and implicitly set safety standards- State worker's compensation and tort law");
● Pedraza v. Shell Oil Co., 942 F.2d 48, 53 (1st Cir.1991) (finding a “solid consensus that section 4(b)(4) operates to save state tort rules from preemption”);
● York v. Union Carbide Corp., 586 N.E.2d 861, 866 (Ind.Ct.App.1992) (“the savings clause operates to exempt tort law claims from preemption” by the OSHA Hazard Communication Standard);
● Jones v. Cincinnati, Inc., 32 Mass. App. Ct. 365, 371-372, 589 N.E.2d 335, 339-340 (Mass. Ct. App. 1992), review denied, 412 Mass. 1105, 595 N.E.2d 326 (Mass. 1992) (“OSHA expressly states that it does not intend to enlarge or diminish the common law rights of employers or employees”);
● Wickham v. American Tokyo Kasei, Inc., 927 F.Supp. 293, 294 (N.D.Ill.1996) (“Courts have consistently held that OSHA's broad savings clause protects state tort laws from preemption”);
● Washington v. Falco S & D. Inc., 1996 U.S. Dist. LEXIS 16266 at *7, 1996 WL 627999 (E.D. La. Oct. 29, 1996) (it is “implausible that Congress intended complete preemption of state law, because to do so would leave plaintiff without a remedy, and would grant defendant, and similarly situated defendants, immunity from liability for personal injuries”);
● Sakellaridis v. Polar Air Cargo, Inc., 104 F.Supp.2d 160, 164 (E.D.N.Y.2000) ("The savings clause plainly states that workers' statutory remedies for personal injuries are preserved”);
● Fullen v. Philips Electronics North Am. Corp., 266 F.Supp.2d 471, 477 (N.D.W.Va. 2002) (“Cutting off an avenue of recourse for accident victims would be contrary to statute's express purpose”);
● Anderson v. Airco, Inc., 2003 U.S. Dist. LEXIS 13765 at *6-7, 2003 WL 21842085 (D.Del. July 28, 2003) (citing the savings clause of the OSH Act at Section 4(b)(4) in support of its determination that “the state tort laws at issue have not been preempted by the HazCom Standard or the VCM [vinyl chloride] warning and labeling standard”);
● In re Welding Fume Prods. Liab. Litig., 364 F.Supp.2d 669, 687-688 (N.D.Ohio 2005) (holding that the HCS does not pre-empt the plaintiffs' common law claims in a multi-district litigation (MDL) proceeding involving numerous personal injury suits against various manufacturers, suppliers, and distributors of welding rod products):
This Court's review of saving clauses included in other Congressional
enactments, as discussed by the Supreme Court in the context of
pre-emption, reveals that no other enactment contains a saving clause
more broad. Congress was careful to warn that its intention was to leave
common law duties and liabilities absolutely unchanged; not only would
the OSH Act neither "enlarge nor diminish" the common law, but -- just in
case there was some other way to modify tort law besides "enlarging or diminishing" it -- Congress further stipulated that the OSH Act would not
"affect [the common law] in any other manner." It is difficult to imagine a
more explicit statement of Congressional intention to preserve and not
pre-empt state common law.
● Lindsey v. Caterpillar, Inc., 480 F.3d 202, 209 (3rd Cir.2007) (citing Pedraza, supra, 942 F.2d at 53: “We join with those courts whose holdings have formed a ‘solid consensus that [29 U.S.C. § 653(b)(4)] operates to save state tort rules from preemption’"); and,
● Lopez v. Gem Gravure Co., Inc., 50 A.D.3d 1102, 1103, 858 N.Y.S.2d 226 (N.Y.App.Div.2008) (“the plaintiff's failure to warn cause of action, based on the chemical defendants' material safety data sheets for specific chemicals to which the plaintiff allegedly was exposed, was not preempted by the federal Occupational Safety and Health Administration standards or the regulations promulgated thereunder”).
Notwithstanding this broad-based and consistent interpretation of Section 4(b)(4), the defense bar seized upon some overly broad language in the Hazard Communication Standard in support of a preemption argument.
When the HCS was promulgated in 1983, OSHA’s objective was to preempt conflicting and competing state and local “right to know” laws, which had been adopted in 12 states and six municipalities in response to OSHA’s 12 year delay in issuing this basic health and safety regulation. See Preamble to Final OSHA Standard on Workplace Hazard Communication, 48 Federal Register 53284, November 25, 1983.
Defense counsel were further aided by a unpublished opinion by a distinguished panel of jurists on the Appellate Division of the New Jersey Superior Court in Bass v. Air Products & Chemicals Inc., et al., Docket No. A-4542-03T3, decided May 25, 2006. Apparently the record to the Appellate Division was devoid of any citation to the preamble of the 1983 OSHA HCS rulemaking, and without any citation to the above-referenced decisions of the U. S. Supreme Court, the U.S. Courts of Appeals for the First and District of Columbia Circuits, the six U. S. District Courts, and four state appellate courts (including New Jersey). The Appellate Division held that the HCS “expresses a clear intent to preempt any state legal requirements that address the content of warnings regarding potential chemical hazards” and that a “verdict” in a common law claim would be preempted by the HCS. Bass, slip.op. at 20.
Bass was wrongly decided. The power of federal preemption flows from an act of Congress. A federal agency like OSHA has no preemptive authority beyond that bestowed upon it by Congress. Since Congress never provided OSHA with any authority to broadly preempt tort claims, OSHA’s Hazard Communication Standard could never preempt the class of common law failure to warn claims.
The cause of this entire controversy was OSHA’s use of overly broad language in its Hazard Communication Standard. Accordingly, I thought it appropriate that OSHA issue an official interpretation of its own regulation, which it has done on hundreds of occasions in the past 40 years. On March 2, 2011, I wrote to David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, and requested “an official interpretation” of the OSHA Hazard Communication Standard at 29 CFR §1910.1200(a)(2) because it was “being misinterpreted to also preempt state tort law failure to warn claims brought by workers who have been injured or killed by occupational exposure to toxic substances.”
On October 18, 2011, M. Patricia Smith, the Solicitor of the U. S. Department of Labor, provided me with an official interpretation of the OSHA HCS preemption provision. The agency stated that the OSHA Hazard Communication Standard was not intended to preempt common law tort claims for the following reasons:
1. “It is the Department of Labor's position that the latter cases [one of which is identified as the Bass case] were decided incorrectly, and that section 1910.1200(a)(2) does not preempt a failure-to-warn state tort claim. The decisions finding preemption are inconsistent with the savings clause discussed above, because OSHA does not have the authority to broadly preempt any state tort law claim.”
2. “OSHA therefore intended the provision to preempt only state and local laws and regulations, i.e., positive enactments, and the use of the word ‘requirements’ is properly understood as limited to such law. This was also the common understanding of the word when the standard was promulgated in 1983. The regulatory history makes this limitation clear.”
3. “Nowhere in that discussion [in the preamble] is there any complaint regarding the availability of state tort remedies. Id. This is not surprising in light of the savings clause making clear that the Secretary has no authority to ‘enlarge or diminish or affect in any other manner the common law. . .duties. . .of employers.’ 29 U.S.C. 653(b)(4). Indeed, one commenter, apparently recognizing the limits of OSHA's authority to provide uniformity, stated: ‘While we recognize statutory limitations in this area, we believe every effort should be made to see that such a Federal standard preempts State and local efforts.’ 48 Fed. Reg. at 53283-84 (emphasis added). Had the Secretary believed the savings clause was inapplicable or superseded, she would have provided an explanation. But there is none.”
4. “Therefore, it is the Department of Labor's position that the Hazcom standard, as a general matter, does not preempt state tort failure to warn suits.”
On March 26, 2012, OSHA promulgated a modified Hazard Communication Standard, effective May 25, 2012, which made it explicitly clear that the Hazard Communication Standard does not preempt state common law failure-to-warn claims. Within this modified standard, OSHA amended 29 C.F.R. § 1910.1200(a)(2), the preemption paragraph of the HCS, by changing the words ‘‘legal requirements’’ to ‘‘legislative or regulatory enactments’’ in the provision’s first sentence and eliminating the words ‘‘through any court or agency’’ in the last sentence. In the preamble to this modified HCS rulemaking, OSHA stated that the existing “HCS does not preempt state tort failure to warn lawsuits.” In support of its position, OSHA cited the fact that the Occupational Safety and Health Act’s “savings clause,” Section 4(b)(4), “explicitly preserves, rather than preempts, State tort law.”
Industry challenged OSHA’s rulemaking, and particularly OSHA’s revision of paragraph (a)(2) of the standard. In American Tort Reform Association v. Occupational Safety & Health Administration, 738 F.3d 387, 394 (D.C.Cir.2013), in a 3-0 decision, the U.S. Court of Appeals for the District of Columbia Circuit upheld OSHA’s ability to assert its interpretation of the Hazard Communication Standard:
OSHA has consistently relied on judicial decisions that have independently reached the position espoused in Paragraph (a)(2). These judicial decisions invariably invoke section 653(b)(4) of the OSH Act, which provides that the
Act is not to be construed so as to supersede “common law ... with respect
to injuries, diseases or death of employees arising out of, or in the course of, employment.”
I represented United Steelworkers Local Union 4-277 as intervenors on the side of OSHA.
The defense bar still believes that the preemption “defense remains viable with the right arguments and a willingness to show that OSHA has overstepped its authority in recent amendments.” Thus, we likely haven’t seen the last word on this issue. For certain, Bass v. Air Products & Chemicals Inc., which was an unpublished decision with no precedential weight, was wrongly decided and should no longer be considered or cited by any court.