Sunday, January 23, 2022
In my first reading of the opinion this morning, I conclude that all the Supreme Court said in the big National Federation of Business vs. OSHA case is that OSHA does not have the statutory authority to regulate what workers' compensation folk know as "non-employment risks." Completely missing from the opinion is any sophisticated discussion of when an elevated neutral risk becomes de facto an employment risk. Importantly, the Court did not even say that Congress lacked the Constitutional authority to regulate non-occupational risks. There was a hat-tip to the historic prerogative of states to regulate health and safety under police powers, & etc. But I do not read anything in the opinion suggesting that if a more serious disease rolled through the country Congress would be without authority to amend OSHA, or pass a new law, to compel vaccination. (I was somewhat surprised that the Fourth Amendment was not discussed -- though I may have missed it -- because the question of seizure of the body will eventually be implicated). The opinion--the "major questions" doctrine nowithstanding--avoids real constiutional scrutiny. I have very little doubt the case would have come out differently if it were litigated in the early days of the pandemic and we'd had an active rather than a passive iteration of OSHA at that time.
Do I think Congress would amend OSHA in reaction to this case in the next few years? No. I'd be surprised if Congress could amend a lunch order in the current environment. The Senate even voted to disapprove the rule. And this obvious fact will bring us back to an important question. If existing OSHA cannot lawfully regulate non-occupational harms under the very unsophisticated definition of "occupational" harm rolled out by the Court, does that completely open the door for states to simply duplicate state regulations consistent with what the Court insists is beyond OSHA's power? It would be pretty hard to argue preemption now. I guess we'll find out.
Sooner ot later we have to figure out how to cover "mixed" risks.