What to Know: How and When to Ask OSHA for an Opinion

Many employers rely on attorneys to help them interpret gray areas in legal provisions and comply with the employment laws and regulatory standards that apply to their workplaces. Recognizing a need for expedited clarity, the U.S. Department of Labor (DOL) launched an opinion letter program on June 2, 2025, to expand access to official written interpretations of labor laws in response to requests from employers, workers, attorneys, and other stakeholders.  

The program applies to the: 

• Occupational Safety and Health Administration (OSHA) 
• Mine Safety and Health Administration (MSHA) 
• Wage and Hour Division  
• Employee Benefits Security Administration  
• Veterans’ Employment and Training Service  

OSHA has a well-established history with the release of letters of interpretation, while the MHSA recently created an information hub as an alternative to issuing opinions.   

Purpose of the Opinion Letter Program 

Opinions are just that – opinions. They do not override regulations or statutes. However, they provide authoritative guidance and may be used as evidence in legal liability cases. When the program was launched, Deputy Secretary of Labor Keith Sonderling said it is intended to make the opinion-letter process more accessible and transparent. Goals include: 

• Protecting employer and employee rights in U.S. workplaces 
• Supporting internal self-audits of employment practices 
• Keeping pace with emerging technologies, such as artificial intelligence 
• Clarifying independent contractor status 
• Ensuring wage-and-hour compliance  

According to John Surma with Ogletree Deakins, an international law firm representing employers, the DOL initiative “aims to deliver clarity and predictability for both employers and employees navigating complex labor law requirements.” In an article, he notes that the program addresses a marked decline in the use of letters of interpretation by OSHA during previous White House administrations, and that the agency has issued only two letters so far this year.  

How to Submit a Request to OSHA 

To submit a request for an opinion letter, refer to www.dol.gov/opinion-letters for agency-specific instructions. You can access information about OSHA’s request process and active and archived letters here: Letters of Interpretation | Occupational Safety and Health Administration.  

Any individual or entity may submit a request for guidance. The DOL recommends that a letter include specific references to applicable laws, regulations, and other relevant sources, and an accurate description of the scenario in need of clarification. This may include facts about the nature of the workplace, job duties, work schedules, or pay structure.  

What to Expect 

When issuing an opinion, OSHA officials may cite previous interpretations, quote regulatory text, and explain their reasoning. The response must be approved by the Directorate of Standards and Guidance, Directorate of Enforcement, and the Solicitor’s Office before it is issued. OSHA has the discretion to decide which requests for interpretation to answer.  

DOL agencies will not issue letters for use in any investigation or litigation matter that existed before submitting a request for an opinion. Since opinions are typically issued in the public domain, a request for interpretation should not include sensitive personal or confidential business information. Senders are asked to provide a phone number where they can be contacted.  

Precautions for Employers When Seeking an Opinion 

During a recent webinar on OSHA letters of interpretation, three attorneys with Conn Maciel Carey, a law firm specializing in labor, employment, and workplace safety issues, advised employers to be cautious when considering whether to ask the agency for an opinion that will become a public record.  

According to Eric Conn, a founding partner and OSHA practice chair in the firm, the opinion letter program creates a window of opportunity for employers to potentially obtain favorable interpretations. However, there could also be unexpected, less-than-desirable consequences. For example, in a de-regulatory environment, some obligations may be relaxed for employers, but they could face challenges from labor organizations and other parties in court. “There is fine line between guidance and making changes in a standard that could create new burdens for employers,” Conn said. “Courts would likely scrutinize such actions.” 

Conn and his colleagues, Kathryn McMahon, a partner in the firm’s OSHA and Workplace Safety Practice Group, and Scott Hecker, senior counsel and former DOL attorney, offered this guidance: 

• Know what the answer is likely to be before you submit a request letter to OSHA.  
• Consider whether your question(s) could raise a red flag about an issue that is not on the agency’s radar or trigger a workplace inspection based on probable cause, such as a possible occupational health exposure risk.  
• Contact OSHA’s Standards Division and ask to speak with experts on the provision in question. You may receive the clarification you need. If not, prepare a draft request letter and provide it to a designated OSHA contact. If there are signs of disagreement with the draft letter, continue to seek an agreeable resolution or decline to submit a formal request.  
• If you reveal in a request letter that you are violating a rule, your organization will need to provide evidence of compliance or be subject to a willful violation citation once you receive an answer. 
• You may send your request for an opinion as a private citizen or through an attorney without identifying the organization you represent. 
• If you have operations in states with their own occupational health and safety enforcement agencies, you may find that the state interprets some regulations differently and defer to federal OSHA when standards are in parity.  
• Understand the basics of what is legally allowed and consult with an attorney when the need arises to help protect your business.  

All occupational health and safety regulations have gray areas. Federal OSHA standards include detailed mandatory requirements and lengthy preambles based on years of research and public input. Over time, as industry processes and procedures evolve, questions about the applicability of certain provisions inevitably arise. “Letters of interpretation are both shields and swords. We want to use the shield and avoid the sword. They are not meant to create or change laws,” McMahon said.  

WorkCare Can Help 

WorkCare’s subject matter experts can help your organization identify workplace occupational health and regulatory exposure risks and remain in compliance with OSHA standards. Contact us to learn more.