On December 22 the U.S. Court of Appeals for the District of Columbia upheld the OSHA crystalline silica rule, rejecting all objections raised by industry groups. In 2016, OSHA had published a final rule regulating workplace exposure to silica, Occupational Exposure to Respirable Crystalline Silica (29 CFR 1910, 1915 and 1926).

The industry groups had petitioned for review of several issues:

  • Whether substantial evidence supports OSHA’s finding that limiting workers’ silica exposure to the level set by the rule reduces a significant risk of material health impairment.
  • Whether substantial evidence supports OSHA’s finding that the rule is technologically and economically feasible
  • Whether OSHA had complied with the Administrative Procedure Act (APA) in promulgating the rule, and
  • Whether substantial evidence supports two provisions of the rule, which allow workers who undergo medical examinations to keep the results confidential from their employers and prohibiting employers from using dry cleaning methods unless doing so is infeasible.

Separately, unions had requested the Court review of parts of the rule requiring that medical surveillance for construction workers be provided only if the employee has to wear a respirator for 30 days for one employer in a one-year period and the absence of medical removal protections (MRP).

The Court rejected the unions’ challenge to the construction standard’s 30-day trigger for medical surveillance, however the Court did find that OSHA was arbitrary and capricious in declining to require MRP for some period when:

  • a medical professional recommends permanent removal,
  • a medical professional recommends temporary removal to alleviate COPD symptoms, and when
  • a medical professional recommends temporary removal pending a specialist’s determination.

The Court concluded that OSHA failed to adequately explain its decision to omit medical removal protections from the rule and remanded that portion of the rule back to OSHA for further consideration.

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