In my first reading of the opinion, I conclude that all the Supreme Court said in the big National Federation of Independent Business vs. OSHA case is that the Occupational Safety and Health Administration does not have the statutory authority to regulate what workers' compensation folk know as "non-employment risks." 

Michael C. Duff

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 the Occupational Safety and Health Act 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 notwithstanding — avoids real constitutional 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 or later, we have to figure out how to cover "mixed" risks.

Michael C. Duff is a professor of law at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.