Most federal laws intersect, in some way, with the general police powers of the states. The federal labor and employment laws vary considerably, one to another, in whether they preempt the right of states to legislate or regulate. For example, the Fair Labor Standards Act sets a floor for regulation: states may enact more protective laws that will apply within the state’s boundaries. In contrast, the National Labor Relations Act is entirely preemptive: states may not pass laws that regulate private sector unions, and any law that appears to regulate unions and collective bargaining (in spheres reached by the Commerce Clause) will be held preempted by the federal statute. 

In order to determine whether federal law preempts the right of states to act, one has to look first at the federal statute, and then at the interplay between the federal law and state laws.

In 1970, Congress concluded that federal occupational safety and health regulation was essential for all – not just mining – industries. But much has been left to the states, under both traditional police powers and under the OSHAct scheme itself.

Section 18 of the OSH Act contemplates shared responsibility between the federal government and the states for worker safety and health, and it allows states to assume responsibility for occupational safety and health with the approval of the OSHA. (Read Section 18 in preparation for reading the text below, and be ready to discuss it).

States that have sought approval to take over OSHA enforcement pursuant to Section 18 are generally called “state plan states.” About half of states have done this – there is a current listing of state plans here: https://www.osha.gov/stateplans. State plans require federal approval and must be consistent with federal law (comparable standards, enforcement, and adjudicatory functions) and “at least as effective” – but specific aspects of standards and enforcement may vary. 

In states without state plans, federal OSHA is directly responsible for enforcement of the standards, the general duty clause and the anti-retaliation provision in the OSHAct for the private sector and for federal employees. Federal OSHA does not reach state and local public employers. States may, or may not, regulate health and safety in these sectors. A number of states currently have approved state plans that cover only the state, county and municipal workers. For a list of these states, see   https://www.osha.gov/stateplans/. 

If OSHA does not regulate a safety and health hazard, any state—with or without a state plan – may do so. Remember that Section 18(a) of the OSH Act provides that it does not “prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no [OSHA] standard is in effect…” 29 U.S.C. 667(a)

When there is an existing OSHA standard, however, the Supreme Court has interpreted Section 18 to mean that the Act “precludes any state regulation of an occupational safety and health issue with respect to which a federal standard has been established, unless a state plan has been submitted and approved.” In Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88 (1992), Illinois had enacted a Hazardous Waste Crane and Hoisting Equipment Operators Licensing Act. The court explored the entire question of OSHA §18 preemption in its decision and concluded that §18 assumes exclusive federal regulatory jurisdiction in the absence of a state plan, and therefore precludes “any state regulation of an occupational safety or health issue with respect to which a federal standard has been established, unless a state plan has been submitted and approved pursuant to § 18(b).” It does not matter if the additional state regulation does not conflict and supplements the federal scheme, and it does not matter if the state regulatory purpose is different from that of OSHA (as Illinois argued here). 

Because federal OSHA does not reach state, county and municipal public sector jobs, all states are free to regulate health and safety for these workers.

For the private sector: States that do not have state plans (“federal OSHA states”) may not regulate the hazard for which a standard has been promulgated in the private sector – at all. For example, any state may regulate ergonomic hazards or ban workplace smoking or address heat stress, since federal OSHA has no standards for these hazards (at least not as of 2024). States with approved state plans, which must cover the state's public sector workers, may choose to adopt a more stringent standard for a regulated substance or hazard – for example, these states may adopt a standard governing confined spaces that is more stringent than the federal standard. Federal OSHA states, on the other hand, may not regulate confined spaces at all for the private sector, because of preemption. 

When OSHA chooses to issue a new regulation, state laws in federal OSHA states are wiped out by the preemptive effects of the statute, and the federal regulation may have a levelling effect. One historical example: when OSHA promulgated its “Right to Know” standard that gives workers the right to certain information, existing state laws in federal OSHA states – some of which were considerably stronger than the federal rule – were essentially wiped out by the new regulation. On the other hand, the federal rule had the effect of providing increased protection in many states, as well as more uniformity across the country.

Even in federal OSHA states, however, "state laws of general applicability (such as laws regarding traffic safety or fire safety) that do not conflict with OSHA standards and that regulate the conduct of workers and non-workers alike," are not preempted. Gade at 107. According to the Supreme Court, even a law that directly and substantially protects workers "cannot fairly be characterized as [an] `occupational' standard[] if it "regulate[s] workers simply as members of the general public." Id. But a law "directed at workplace safety" will be preempted. 

Hazards that OSHA regulates under the general duty clause, and for which no OSHA standard exists, may be regulated by any state. Preemption does not apply when no OSHA standard covers the hazard regulated by the state.

OSHA also issues regulations that address enforcement, recordkeeping, and access to medical records. These are not standards, and state requirements addressing these issues are not preempted under Gade. Admittedly, it is sometimes difficult to distinguish between an OSHA regulation and an OSHA standard. A standard is “a remedial measure addressed to a specific and already identified hazard, not a purely administrative effort designed to uncover violations of the Act and discover unknown dangers. In short, standards should aim toward correction. . . ” Louisiana Chemical Ass’n v. Bingham, 657 F.2d 777, 782 (5th Cir. 1981). On the other hand, the ‘standard’ governing hazard communication was held to have preemptive effect – which reinforces the sense that it is difficult to draw a bright line between standards and regulations. See e.g. New Jersey Chamber of Commerce v. Hughey, 868 F.2d 621, 623 (3d Cir. 1989). 

One area is very clear: workers’ compensation laws and tort claims are not affected by the OSH Act: “Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” 29 U.S.C.A. § 653 (4).

A note about federal/state powers under the MSH Act:

The Mine Safety and Health Act does not have the same preemptive effect as the OSH Act. States can enact mine safety laws and enforce them. For example, in West Virginia, both the US Mine Safety and Health Administration and the state mine safety and health agency have jurisdiction over mine safety issues; both can promulgate rules; both employ inspectors to inspect workplaces; and so on. While the state law cannot undercut federal law, it can be stricter. This is more similar to the state: federal relationship in discrimination law or wage/hour law than it is to the relationship under OSHA.

-------------

Question for discussion: 

Why do you think that there is so much variability in the federal:state preemption in the labor and employment area? What purposes do the different models – MSHA, OSHA, FLSA, ERISA – serve? What are the arguments for and against each model?