Minnesota OSHA’s rulemaking authority

Sometimes during an emergency, lawmakers are forced to scour the regulatory cupboard to discover laws that can help end the emergency. President Biden, for example, has reached back deep into the cupboard to find a 1970 law that he hopes will solve the public-health issue of unvaccinated Americans and the risk they pose in worsening the COVID-19 pandemic. But had Biden chosen not to act, could Minnesota lawmakers in the executive branch have acted similarly?

Last week, Biden announced a vaccination requirement that will affect about 80 million private-sector workers, forcing them to get either vaccinated or tested at least weekly. The legal authority behind the requirement is a law that allows the federal Occupational Safety and Health Administration (OSHA) to issue emergency temporary standards if workers “are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”

And Biden has used this law recently; for example, OSHA in June issued an emergency temporary standard to protect health-care workers from COVID-19. The standard — still effective — requires health-care employers to develop and implement a plan to identify and mitigate coronavirus-related workplace hazards. While an important step for protecting health-care workers, the standard pales in comparison to the scope of Biden’s wide-reaching vaccination requirement.

But if Biden did not see the need to have OSHA issue the vaccination requirement, could Minnesota lawmakers plunge ahead with a state requirement? Yes, and they have, most recently in July to incorporate the federal standard on health-care workers. Unlike most other states, Minnesota can issue its own OSHA rules — including emergency temporary standards — through broad statutory authority under its parent agency, the Department of Labor of Industry. Most times, Minnesota OSHA adopts federal OSHA guidelines by reference, but Minnesota OSHA can choose to adopt its own rules under a rulemaking process unavailable to other state agencies, including a process to issue emergency temporary standards.

Normally in state rulemaking, when an agency wants to adopt a rule, the agency must undertake a lengthy rulemaking process with notice and comment, detailed rationale for the rule, and legal review by the Office of Administrative Hearings (OAH). Minnesota OSHA, however, skips this normal process when issuing an emergency temporary standard. First, the standard is effective upon publication (usually in the State Register). Second, Minnesota OSHA has six months after publishing the rule to adopt the standard through OSHA’s standard rulemaking process, although it could take no further action and let the standard lapse.

Ian Lewenstein

The Minnesota OSHA rulemaking process hews closely to the federal process, both for the emergency temporary standard and the standard OSHA process, which produces rules known as OSHA-exempt rules. OSHA-exempt rules, like normal agency rules, also provide a 30-day comment period and allow for interested persons to request a public hearing. But OSHA need not submit its rule to OAH nor do anything in response to public comments. OSHA simply has to publish the rules within 60 days after the comment period or the hearing ends — if one is requested. While OSHA’s process for issuing emergency temporary standards is reasonable and necessary during times such as the current public-health crisis, whether OSHA-exempt rules — a process unchanged since 1973 — should remain exempt from normal state rulemaking requirements is another question worth exploring.

Though OSHA benefits from a unique rulemaking process, other state agencies can take advantage of a process that allows them to quickly adopt rules when necessary to “address a serious and immediate threat to the public health, safety, or welfare.” This process, known as good-cause exempt, allows for a five-day public-comment period and requires the agency to submit the rule to OAH for review. A good-cause-exempt rule is effective for only two years if it addresses public health, safety, or welfare.

Agencies adopt good-cause-exempt rules several times a year; so far this year, agencies haveproposed five rules, with three of them being approved and two of them disapproved: one from the Board of Animal Health and another from the Department of Labor and Industry. Because good-cause-exempt rules must be submitted to OAH for legality, they are subject to disapproval, a possibility that the OSHA-exempt process precludes. The good-cause-exempt process strikes a good balance: a quick process that allows an agency to quickly address a public-health emergency, but a process that provides OAH oversight and opportunity for public comment.

While the rule process for federal and Minnesota emergency temporary standards offers an important tool to mitigate and help end the current pandemic, it might be worthwhile to reexamine OSHA-exempt rules. During the pandemic, lawmakers at all governmental levels have been examining older laws dealing with executive emergency authority. Revisiting law —  whether it is commonly used or not — is good practice. But whether lawmakers should wait for a pandemic to do so is something that should also be revisited.

Ian Lewenstein is a Minnesota state employee, specializing in state rulemaking. His comments represent his views alone.

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