Almost every state has issued closure orders designating certain businesses as “essential” and allowing them to continue to operate during the COVID-19 pandemic. Some states have recently issued orders expressly or implicitly regulating the safety and health of workers at those essential businesses. Are some or all of the provisions in these orders preempted by the Occupational Safety and Health Act of 1970 (OSH Act)? It depends.

Preemption Law  

The legal framework for determining whether a state provision is preempted is set out in the Supreme Court of the United States’ decision in Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992). The Court considered whether Illinois laws requiring licensing and training for workers handling hazardous waste was preempted by the OSH Act and existing Occupational Safety and Health Administration (OSHA) standards. Specifically, OSHA’s Hazardous Waste Operations and Emergency Response (HAZWOPER) standard, 29 C.F.R. § 1910.120, requires various levels of training for employees handling hazardous waste or responding to a catastrophic release of chemicals.

Section 18(b) of the OSH Act allows states to assume jurisdiction over workplace safety and health by submitting a plan for approval by federal OSHA. State plans enforce safety and health standards in the state, and are permitted to adopt their own standards. Twenty-two states have approved state OSHA plans. Illinois was not one of those states when Gade was decided, and does not currently have a state plan covering private sector employees.

The Court held: “[N]onapproved state regulation of occupational safety and health issues for which a federal standard is in effect is impliedly preempted.” OSHA’s HAZWOPER standard addressed training for hazardous waste workers and Illinois did not have a state OSHA plan that had adopted a standard. The fact that the Illinois laws were aimed at protecting both workers and the public was not relevant. Each Illinois law “directly, substantially, and specifically regulate[d] occupational safety and health” and, therefore, met the definition of an “occupational safety and health standard” under the OSH Act. “Our precedents leave no doubt that a dual impact state regulation cannot avoid OSH Act pre-emption simply because the regulation serves several objectives rather than one.”

The Court distinguished laws of general applicability that affect workers and non-workers alike: “[S]tate 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 would generally not be pre-empted.”

State Orders: Pennsylvania and New York as Case Studies

On April 15, 2020, the Pennsylvania Department of Health issued an Order Directing Public Health Safety Measures for Businesses Permitted to Maintain In-person Operations. The order took effect on April 19, 2020. The order requires “certain actions to be taken by employers and their employees to protect their health and lives” as well as their families and the public. Those actions include the following:

• Implement on-site “temperature screening” before work each day and “send employees home that have an elevated temperature or fever of 100.4 degrees Fahrenheit or higher”;

• “[P]rovide employees access to regular handwashing with soap, hand sanitizer, and disinfectant wipes”;

• “[E]nsure that common areas (including but not limited to break rooms, locker rooms, dining facilities, rest rooms, conference or training rooms) are cleaned on a regular basis, including between any shifts”; and

• “[P]rovide masks for employees to wear during their time at the business” and implement rules making it “a mandatory requirement to wear masks while on the work site, except to the extent an employee is using break time to eat or drink.”

According to the order, “employers may approve masks obtained or made by employees in accordance with Department of Health guidance,” but the guidance has not been issued to date.

Under Gade, certain parts of the Pennsylvania order are likely preempted. Specifically, OSHA standards address the following:

• The provision of personal protective equipment (PPE) (including perhaps masks) (29 CFR 1910.132);

• Maintaining the workplace in a “sanitary” condition (29 CFR 1910.22); and

• Providing adequate facilities for employees to wash their hands (29 CFR 1910.141).

(Note that with regard to PPE, OSHA said during a conference call with stakeholders that masks are not PPE because they do not protect the employee from contracting COVID-19. Instead, the agency claims that masks mitigate the chances an employee will transmit COVID-19 to another employee. OSHA has not issued any written guidance stating that masks are not PPE.)

In contrast, no federal OSHA standard mandates temperature screening. Under Gade, that provision is likely not preempted by the OSH Act.

On the same day the Pennsylvania order was released, New York Governor Andrew Cuomo issued Executive Order 202.17 requiring “any individual who is over age two and able to medically tolerate a face-covering” to wear one “when in a public place and unable to maintain, or when not maintaining, social distance.” New York does not have an approved state OSHA plan covering private sector employees. The New York order affects employees and non-employees alike—a package delivery person is required to wear a mask, and so is a person jogging in Central Park. The New York order is clearly the type of a “state law of general applicability” characterized in Gade, and not preempted.

Key Takeaways and Questions

• Feasibility of the Pennsylvania order. These measures may not be feasible for some employers. For example, thermometers are extremely difficult to procure. In addition, the order provides no guidance on the types of PPE the person who is taking employee temperatures should wear. This individual will presumably be within six feet of employees, and obtaining the type of PPE a healthcare worker would typically wear is generally not possible. In addition, the person who is taking employee temperatures will likely have no training as a healthcare provider. In other words, the order may place employees at risk by failing to give any guidance on what PPE and other protections employers should provide to temperature takers.

• Preempted Pennsylvania provisions—what is the remedy? Assuming parts of the Pennsylvania order are preempted, an affected entity has two options. First, an employer or trade association could seek a temporary restraining order and file for a declaratory judgment holding that part of the order as preempted. This option may be unappealing for several reasons, including the public’s perception of an employer or trade association that challenges the order and the fact that it is not clear how long the order will be in effect. The second more appealing option may be to make good faith efforts to comply where feasible and know that in the event of enforcement action, the preemption argument may be available as a potential defense.

• How will the Pennsylvania order be enforced? The order does not address how it will be enforced or who will enforce it. The order lists several provisions as providing authority. Those provisions contain criminal penalties. Specifically, the Administrative Code of 1929, 71 P.S. 1409 states that a violation of a Department of Health Order may result in a fine of at least $10 and not more than $50. If the fine is not paid, a sentence of 30 days in county jail may be ordered. The Disease Prevention and Control Law of 1955 states that a violation of a Department of Health order is a “summary offense” punishable by a fine of between $25 and $300.