Maryland employers are facing the first summer under a
heat-related illness prevention standard issued by Maryland Occupational Safety and Health (MOSH). MOSH joins several other Democratic-led Occupational Safety and Health Administration (OSHA) state-plan states, such as
California ,
Nevada ,
Oregon , and
Washington , that have promulgated similar standards in recent years.
Quick Hits
The MOSH standard is among the most onerous for employers and has been criticized for the vagueness of its acclimatization, monitoring, and training requirements. While MOSH claims the standard is intended to provide the flexibility to implement a program that considers the unique conditions present at each worksite, the standard’s breadth and ambiguity have caused confusion among employers and set the stage for inconsistent enforcement and litigation. While the information MOSH provided in the webinar is helpful, additional written compliance guidance would be more helpful to employers developing plans. Given the ambiguous provisions in the MOSH standard, “Monday-morning quarterbacking” may be inevitable, with MOSH taking the position that the employer must be out of compliance if an employee suffers a significant heat-related illness. That position ignores the fact that heat-related illnesses often involve conditions outside of the employer’s control, such as illness, physical fitness, personal medical conditions, and age. From a legal standpoint, MOSH’s ability to enforce its
ad hoc interpretation of the standard’s provisions may be limited. In
Loper Bright Enterprises v. Raimondo , the Supreme Court of the United States eliminated deference to an agency’s interpretation of its own statute. The holding will limit the ability of federal agencies to argue successfully that a court must defer to their interpretation of a standard or regulation. The effect of the
Loper Bright holding on state regulatory provisions remains to be seen, but it could limit MOSH’s ability to impose its own interpretation of vague provisions on employers, particularly in the absence of written compliance guidance.
