United Steelworkers of America v. Marshall
208 U.S. App. D.C. 60, 647 F.2d 1189 (1980)
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Rule of Law:
The Occupational Safety and Health Act grants OSHA broad authority to issue stringent, technology-forcing standards to protect workers from subclinical health effects, including the power to mandate Medical Removal Protection (MRP) with full earnings protection, provided the standard is supported by substantial evidence of significant risk and is proven to be technologically and economically feasible for the specific industries regulated.
Facts:
- For centuries, it has been known that lead absorption through inhalation and ingestion causes serious health hazards for industrial workers.
- In the United States, at least 800,000 workers across more than 40 industries are exposed to airborne lead in the workplace, facing dangers of lead poisoning.
- Scientific evidence established that even at low levels of exposure, lead accumulation causes a range of 'subclinical' effects—physiological changes that are precursors to overt disease—damaging the blood, nervous, renal, and reproductive systems.
- In 1971, the newly created OSHA adopted a national consensus standard setting the permissible exposure limit (PEL) for airborne lead at 200 micrograms per cubic meter of air (ug/m3).
- Over the next several years, scientific bodies advised OSHA that the 200 ug/m3 PEL was inadequate to protect worker health, prompting the agency to propose a new, more stringent standard.
- Evidence showed that workers, fearing job loss, pay cuts, or other adverse employment actions, often concealed symptoms of lead poisoning and resisted medical surveillance programs.
Procedural Posture:
- The Occupational Safety and Health Administration (OSHA) published a notice of a proposed new standard for occupational lead exposure, setting a Permissible Exposure Limit (PEL) of 100 ug/m3.
- OSHA conducted extensive public hearings where it received testimony and evidence from numerous parties representing both industry and labor interests.
- OSHA issued a final standard which differed from the proposal, most notably by setting a stricter final PEL of 50 ug/m3 and including a comprehensive Medical Removal Protection (MRP) program with earnings protection.
- Numerous petitioners, including the Lead Industries Association, Inc. (LIA) and other industry groups, filed petitions for review of the final standard in the U.S. Court of Appeals for the D.C. Circuit, arguing it was procedurally flawed, exceeded statutory authority, and was not feasible.
- The United Steelworkers of America (USWA) and other labor unions also filed petitions, arguing that certain provisions of the standard were not sufficiently protective of worker health.
- The various petitions for review were consolidated before the U.S. Court of Appeals for the D.C. Circuit.
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Issue:
Does the Occupational Safety and Health Act grant the Occupational Safety and Health Administration (OSHA) the authority to mandate a Medical Removal Protection program that requires employers to maintain the full earnings, seniority, and benefits of employees temporarily removed from high-exposure workplaces due to elevated blood-lead levels?
Opinions:
Majority - Chief Judge J. Skelly Wright
Yes. The Occupational Safety and Health Act grants OSHA the authority to implement a Medical Removal Protection program with earnings protection because it is a 'practice, means, method, operation, or process' reasonably necessary and appropriate to provide safe employment. The Act provides OSHA with almost unlimited discretion to devise innovative methods to achieve its goal of worker protection, and the legislative history makes clear that Congress intended to place the financial burden of compliance on employers. The MRP provision is crucial to the standard's effectiveness; without it, workers fearing economic loss would refuse to participate in the medical surveillance necessary to detect lead poisoning, rendering the standard unenforceable. The provision does not violate Section 4(b)(4)'s prohibition on affecting workers' compensation laws because it is a preventive measure that leaves the legal structure of state compensation schemes intact, even if it practically reduces the number of claims filed. Furthermore, Congress's rejection of a 'strike-with-pay' provision during the Act's drafting is not controlling because MRP is based on objective medical criteria for removal, not an employee's subjective decision to leave the job. The standard's lower Permissible Exposure Limit (PEL) is justified by substantial evidence showing that lead causes significant subclinical health effects at levels previously thought safe, and these effects constitute a 'material impairment of health' that OSHA is empowered to prevent. The standard is technologically and economically feasible for the major lead industries, but the agency failed to provide substantial evidence of feasibility for a number of other industries, requiring a remand for those specific sectors.
Dissenting - Circuit Judge MacKinnon
No. The Medical Removal Protection program directly violates the OSH Act's express prohibition in Section 4(b)(4) against superseding or affecting any workmen's compensation law, as it provides benefits superior to and in place of state-mandated compensation. The agency also committed several procedural and substantive errors requiring a full remand. OSHA's post-hearing use of consultants who had previously served as expert witnesses was improper, tainting the decision-making process. The agency failed to provide adequate notice that it was considering a final PEL of 50 ug/m3 when the rulemaking focused almost entirely on a 100 ug/m3 level, depriving parties of a meaningful opportunity to comment on the final standard's feasibility. Consequently, there is no substantial evidence in the record to support the technological or economic feasibility of the 50 ug/m3 PEL for many industries. Finally, by creating a presumption of feasibility and shifting the burden of proof to employers, the agency acted contrary to the principles established in the Supreme Court's recent Benzene case.
Analysis:
This landmark decision solidified OSHA's authority to issue technology-forcing regulations that compel industries to innovate and adopt new, safer practices. It affirmed the agency's power to regulate based on 'subclinical' health effects, not just overt disease, significantly broadening the scope of preventive occupational health standards. The validation of the Medical Removal Protection program established a major precedent, allowing agencies to address the economic disincentives that prevent workers from participating in health monitoring, thereby linking financial protection directly to health and safety enforcement. However, the court's remand on feasibility for numerous industries underscored that even with broad discretion, OSHA must support its findings with substantial, industry-specific evidence, establishing a crucial check on the agency's power.
