Document Type

Article

Publication Date

Winter 2026

Keywords

OSHA, Preemption, Heat Rules, Standards, Regulation, Federal Vacuum, Safety, Health, OSH Act

Abstract

This essay is part of a Saint Louis University Law Journal seminar, conducted by the Wefel Center for Employment Law, titled "Shifting Workplace Law in an Era of Federal Vacuums: Business as Usual or Polycrisis?" The symposium presumed that the federal government would be scaling back workforce regulatory enforcement dramatically in the shadow of DOGE and several other developments. The essay focuses on OSHA and more narrowly questions the extent to which the OSH Act preempts state and local efforts to regulate workplace safety and health. The essay shows that unless OSHA promulgates a full-blown “standard” – a tedious form of notice and comment rulemaking that corporate interests famously frustrate through sometimes decades-long process – OSHA cannot block state and local workplace safety regulation at all. The essay recounts some of the legislative history surrounding the enactment of the OSH Act. The history helps to explain the restricted preemption provisions in the OSH Act that are much more forgiving than aggressive NLRA or ERISA preemption. While this relative relaxation was the product of states’ rights insisted upon by republican elements within Congress and the Nixon Administration, circa 1969, it may produce unexpected impacts in the current political environment. For example, if corporate interests frustrate issuance of a worker “heat rule,” currently tied up within OSHA as of this writing, states (whether or not possessing OSHA-authorized “state plans”) are at complete liberty to issue heat regulation that is more aggressive than anything “federal OSHA” might be expected to devise.

The essay introduces New York City’s recent heat rules as an example of state or local workplace safety and health law created in reaction to a perceived lapse of federal workplace safety and health regulation. It distinguishes New York City’s heat rules from New York State’s “ergonomics rules” (another area of perceived workplace safety and health regulatory lapse) for the purpose of explaining how the existence of an OSHA “standard” drives OSH Act preemption. It further distinguishes the analysis of preemption involving dual-impact state laws, purporting to regulate both public and workplace safety and health risks, from “typical” state/federal OSH Act conflict. The essay discusses preemption mechanisms in other federal labor and employment statutes and argues that the OSH Act leaves more state law discretion than the other statutes, which in the context of the present moment, “feels different.” The essay concludes that OSH Act preemption, while imperfect, is (in context) preferrable to other forms of preemption, is arguably consistent with Congressional intent, and provides at least some room under state and local law for protecting worker safety and health during a long night of federal retreat.

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