Injured By a Chemical? You’re Not as Screwed

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    By Leah Nicholls, Kazan-Budd Attorney    

    Last week, a unanimous DC federal appellate court upheld an Occupational Safety & Health Administration (OSHA) regulation clarifying that its regulations about labeling used for chemicals in the workplace do not preempt state-law failure-to-warn claims. In other words, companies can’t hide bad behavior behind federal law.

    This is a good thing: OSHA endorses the ability of employees injured because of inadequate chemical labeling to sue under state law to get damages for their injuries and, importantly, to prevent the same injuries from happening to other employees—maybe you.  The fact that the DC Circuit held that OSHA’s endorsement stands will help persuade other courts that the existence of federal regulations does not prevent people from suing under state laws.

    In other words, OSHA agrees that chemical manufacturers causing injury shouldn’t get off scot-free just because there are federal regulations, and the court said OSHA’s opinion should stand.

    A set of regulations by OSHA sets major standards for the labeling of workplace chemicals. In 2012, OSHA amended those standards.  In the process, it also amended an introductory paragraph discussing preemption to clarify that although state and local statutes, regulations, and ordinances were preempted by—that is, they could not exist side-by-side with—federal regulation, state common-law claims about chemical labeling were not.  The amendment was in line with earlier agency statements and court decisions.

    In line with its mission to limit state injury lawsuits, the American Tort Reform Association sued OSHA under the Administrative Procedures Act, challenging the validity of OSHA’s statement about preemption on the basis that, in issuing the statement, OSHA improperly took on the role of Congress and changed the meaning of preemption under the Occupational Safety & Health Act and also that the statement was issued without the proper procedure.  The court rejected all aspects of the Association’s challenge.

    The court’s opinion is great news for those who want to hold chemical manufacturers liable for injuries to employees.  It is true that OSHA’s opinion doesn’t bind courts to its opinion that the statute allows common-law tort claims to proceed—courts are still free to conclude that the existence of federal regulations means that no state-law claims can be brought.  Battles here will remain.

    But in a world where it seems that manufacturers cannot be held liable for their actions because of, among other things, preemption, this is a heartening decision—and one that preserves a tool important to those fighting for their rights—and those of workers in the future.

    photo credit: Mike Shaheen via photopin cc

    Comments

    Oh, good. A regulation that

    Oh, good. A regulation that should've been in place years ago finally is? Yay! Seriously, though, this should've been done long, long ago. Glad to see it finally in place.

    Mother Jones has additional info

    A little more about the American Tort Reform Association:

    "ATRA is a coalition of industry groups founded in 1986 whose members range from the chemical industry to the tobacco industry to the drug industry. The organization advocates for limits on corporate liability for damage caused by member industries' products and services. Since the group's inception, corporations including Dow Chemical, Exxon, Phillip Morris, and Aetna have helped fund it."

    http://www.motherjones.com/mojo/2014/01/dc-circuit-court-chemical-injury