‘Still the Same’? How a Sixth Circuit Decision Could Reopen the Door to OSHA Ergonomics Rules

Quick Hits

• The Sixth Circuit’s decision in Ohio Telecom Association v. FCC provides a framework for federal agencies, such as OSHA, to issue new regulations that are materially different from previously disapproved rules without violating the CRA. The decision clarifies that the CRA does not impose a permanent ban on regulating the same topic, as long as the new rule is not “substantially the same” as the disapproved one.
• Under the Sixth Circuit’s “substantially the same” framework, OSHA could issue new ergonomics regulations that differ significantly in scope, structure, and requirements from its congressionally disapproved 2000 ergonomics standard.
• The decision’s reasoning provides a legally plausible—and defensible—basis for a redesigned OSHA ergonomics rule that is materially different from the disapproved 2000 standard. All the same, Congress could pass targeted legislation to bar such standards.

Background

The CRA prohibits federal agencies from issuing a rule that is “substantially the same” as a rule that Congress previously disapproved through CRA review. The CRA borrows the Administrative Procedure Act’s definition of “rule” as “the whole or a part” of an agency statement. But when courts assess a later rule under the CRA’s “substantially the same” bar, the relevant “rule” is the one that Congress identified in its joint resolution of CRA disapproval.

In 2017, Congress disapproved the Federal Communications Commission’s (FCC) entire 2016 Broadband Privacy Order (officially titled, “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services”), declaring in a joint resolution that the rule would “have no force or effect.”

In December 2023, the FCC issued its “Data Breach Reporting Requirements,” expanding the scope of the Commission’s breach notification rules, and published the order as a final rule in the Federal Register in February 2024.

The petitioners sought review of the FCC’s 2024 rule in the Sixth Circuit, contending that the rule violated the CRA by reissuing requirements that were “substantially the same” as those contained in the congressionally disapproved 2016 order. The FCC argued, on the other hand, that its 2024 rule differed from its 2016 order, which addressed topics beyond breach notification requirements. In a 2–1 decision, the Sixth Circuit upheld the FCC’s 2024 order, holding that it was not “substantially the same” as the disapproved 2016 order. The Sixth Circuit had compared the FCC’s 2024 rule to the entire 2016 order, not to isolated provisions within it.

‘Substantially the Same’

The “substantially the same” test is narrow: The court held the 2024 FCC rule was not “substantially the same” as the disapproved 2016 order because the latter was a sweeping privacy regime while the former addressed only breach reporting and differed in scope and substance. Even comparing just the breach rules, the court emphasized meaningful differences in coverage, definitions, and obligations.

The court also held that Section 805 of the CRA, which precludes judicial review of any “determination, finding, action, or omission under this chapter,” did not prevent courts from reviewing new agency rules for CRA compliance, because a new rule is not an action taken “under” the CRA. The court found the CRA blocks reissuing the same or “substantially the same” rule; it does not impose a categorical prohibition on regulating the same topic with a materially different approach.

OSHA’s Once-and-Future Ergonomics Standard

Congress disapproved OSHA’s 2000 ergonomics standard in 2001. Many have read that disapproval as a permanent block on any future ergonomics rulemaking. The Sixth Circuit’s reasoning would appear to undercut that view:

• The relevant comparison is to the entire 2000 rule that Congress disapproved, not to any ergonomics concept in the abstract or to every component that appeared in the 2000 rule.
• OSHA can issue a new ergonomics rule, so long as it is not “substantially the same” as the disapproved 2000 ergonomics standard in scope, structure, and requirements.
• Targeted or redesigned rules are not automatically barred merely because they share subject matter (e.g., musculoskeletal disorders or repetitive motion risks) with the disapproved rule.

Under the Sixth Circuit’s framework, OSHA could:

• narrow the scope, focusing on high-risk sectors or tasks rather than a universal programmatic standard;
• change the regulatory architecture, replacing comprehensive program mandates with performance-based duties, hazard-specific controls, or tiered obligations tied to risk assessments;
• modify key definitions and triggers, using different definitions of covered hazards, injuries, or exposure, and recalibrate reporting, investigation, and response thresholds;
• revise compliance mechanisms to emphasize flexible, outcome-oriented approaches and avoid prescriptive procedures that mirror the prior rule’s core features; or
• align with distinct statutory bases to ground the rule squarely in Occupational Safety and Health (OSH) Act provisions with a robust evidentiary basis tailored to the new design.

If OSHA were to try to create a new ergonomics standard (an unlikely rulemaking under the current administration), litigation and CRA challenges would likely ensue. If Congress wanted to allow rules closer to the 2000 ergonomics standard, it could take steps to permit specific authorization, which the CRA recognizes as a safe harbor at 5 U.S.C. § 801(b)(2) (“such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule”). If Congress preferred to forbid even narrower ergonomics rules, it could pass targeted legislation explicitly barring such standards.

Key Takeaways

Ohio Telecom Association v. FCC clarifies that CRA disapprovals are not forever-topic bans. They bar “substantially the same” rules as defined and limited by the disapproved action Congress named. For OSHA, that means a carefully redesigned, narrower, and materially different ergonomics rule is legally plausible—and defensible—under the Sixth Circuit’s approach.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Governmental Affairs and Workplace Safety and Health blogs.

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