Severability provision

Severability means each section and provision of Subpart U stands on its own and can remain in effect even if another provision is found invalid. See 1910.505 which explains that if a provision is held invalid on its face or as applied it must be construed to give the maximum effect permitted by law, and if the court finds it utterly invalid the invalid part is severed so the rest of the subpart remains in force.

• Practical effect: one provision being struck down does not automatically cancel the rest of Subpart U.
• Legal reference: 1910.505.

Yes — a requirement declared unenforceable "as applied" to a particular employer can still apply to other employers unless the court's decision is written to be universal. 1910.505 says provisions held invalid "as applied to any person, entity, or circumstance" should be construed to give the maximum effect permitted by law; only when a court finds a provision "utterly invalid or unenforceable" must it be severed from the subpart.

• Key point: the scope of a court ruling (facial vs. as-applied) determines whether the invalidation is limited or universal.
• Legal reference: 1910.505.

If a provision is stayed or enjoined, it should be interpreted to preserve as much of the provision's effect as the law allows while the injunction or stay is in place. 1910.505 explicitly covers provisions that are "stayed or enjoined," instructing that the provision be construed to continue giving maximum lawful effect unless it is held utterly invalid.

• Example: OSHA used targeted enforcement discretion when it announced it would not enforce the COVID-19 recordkeeping and reporting parts of the Healthcare ETS while those portions were the subject of litigation or other change, as described in the enforcement memorandum COVID-19 recordkeeping enforcement stay.
• Legal references: 1910.505 and the 2025-02-05 enforcement stay memorandum.

Often yes — the rest of the provision will remain effective if the offending sentence can be severed and the remaining text still gives meaningful effect. 1910.505 provides that each provision is severable and that if part is invalid it should be construed to give the maximum effect permitted by law; only where the whole provision is utterly invalid must it be removed entirely.

• Practical tip: courts typically try to preserve regulatory language when the remainder can function independently.
• Legal reference: 1910.505.

Yes — OSHA can and will continue to enforce other applicable OSHA standards even if a Subpart U provision is invalidated or stayed. The severability clause in 1910.505 keeps the rest of the subpart intact, and OSHA has stated in practice that it will continue to apply other recordkeeping rules under 29 CFR part 1904 when it has suspended enforcement of specific Subpart U requirements, as in the COVID-19 recordkeeping enforcement stay.

• Example: OSHA announced it would not enforce certain COVID-19 ETS recordkeeping/reporting requirements while continuing to enforce part 1904 recordkeeping. See COVID-19 recordkeeping enforcement stay.
• Legal references: 1910.505 and 29 CFR part 1904 as cited in OSHA guidance (see enforcement stay).[Note: part 1904 text and guidance are available through OSHA's 1910/regulations indices].

If a provision is found "utterly invalid or unenforceable," that provision is severed and does not affect or invalidate the remainder of Subpart U. 1910.505 states the invalid provision shall be severable and the rest of the subpart remains in effect.

• Practical outcome: employers must still comply with the rest of Subpart U unless and until those other provisions are also invalidated.
• Legal reference: 1910.505.

No — OSHA enforcement memoranda or temporary enforcement stays do not change the severability clause itself, but they can reflect OSHA's enforcement priorities while litigation or regulatory changes are pending. The severability clause in 1910.505 remains part of the regulation; OSHA's COVID-19 recordkeeping enforcement stay is an enforcement decision describing how OSHA will exercise its enforcement discretion in a particular situation.

• Practical point: a stay or memorandum is a temporary enforcement action; severability is a legal/interpretive provision of the regulation itself.
• References: 1910.505 and the 2025-02-05 enforcement stay memorandum.

If a judge enjoins part of Subpart U that applies to your operations, the enjoined provision may not be enforceable against you while the injunction is in effect, but the rest of Subpart U remains in force under 1910.505. OSHA has used targeted enforcement discretion in similar circumstances (see the COVID-19 recordkeeping enforcement stay). You should follow the injunction's terms, maintain compliance with other applicable OSHA requirements, and monitor OSHA and court developments.

• Immediate steps: confirm the injunction's scope, follow the court order, continue compliance with unaffected provisions, and watch for OSHA updates.
• References: 1910.505 and the 2025-02-05 enforcement stay memorandum.

No — the severability clause in 1910.505 only addresses the internal legal independence of provisions within Subpart U and does not alter obligations under other OSHA standards. For example, when OSHA announced it would not enforce certain Subpart U recordkeeping/reporting requirements, it made clear it would continue to enforce recordkeeping obligations under 29 CFR part 1904, showing that other standards remain applicable. See the COVID-19 recordkeeping enforcement stay.

• Practical reminder: continue to comply with all non-affected OSHA standards even if some Subpart U provisions are stayed or invalidated.
• References: 1910.505 and the 2025-02-05 enforcement stay memorandum.

Yes — State-plan agencies administer their own OSHA-approved programs and may have different enforcement positions, but they must have standards and enforcement at least as effective as federal OSHA. The severability clause in 1910.505 governs the federal regulation; State-plan responses can vary and have been noted in OSHA interpretations (see the asbestos and tire servicing letters that remind employers State plans may be more stringent). For federal actions like enforcement stays, OSHA may announce federal enforcement priorities (see the 2025-02-05 enforcement stay), but State-plan authorities could take different steps within their jurisdictions.

• Practical implication: check with your State-plan agency for its position if you operate in a State-plan state.
• References: 1910.505 and illustrative OSHA letters discussing State-plan differences (see, e.g., Asbestos remediation protocols).

OSHA cannot unilaterally rewrite a court-invalidated statutory or regulatory provision, but courts can sever offending text and allow the remainder to stand if that preserves the regulation's function; 1910.505 directs that provisions be given their maximum lawful effect. OSHA may, however, propose regulatory changes through rulemaking to address gaps. In practice, OSHA also may issue enforcement guidance or stays (for example the COVID-19 recordkeeping enforcement stay) while legal and rulemaking processes proceed.

• Key point: severability governs how courts and OSHA treat remaining text; substantial changes to wording typically require formal rulemaking.
• References: 1910.505 and the 2025-02-05 enforcement stay memorandum.

Courts decide whether a provision is "utterly invalid" in a legal challenge; 1910.505 sets the regulatory expectation that provisions are severable and that, absent a finding of utter invalidity, the agency and courts should preserve as much of the provision as the law allows. OSHA may also exercise enforcement discretion (for example, see the COVID-19 recordkeeping enforcement stay) while litigation is ongoing.

• Practical note: until a court issues a binding ruling, the provision remains subject to enforcement as written unless OSHA announces a specific enforcement stay.
• References: 1910.505 and the 2025-02-05 enforcement stay memorandum.