In 2023, the Sixth Circuit Court of Appeals rejected arguments challenging the constitutionality of the Occupational Health and Safety Act. The suit alleged that the 1970’s law violates separation of powers principles because Congress gave OSHA impermissible discretion to adopt workplace safety and health regulations. The Sixth Circuit, citing U.S. Supreme Court precedent, held that the act fell within the scope of Congress' authority to delegate general authority to accomplish legislative goals. In July, the Supreme Court declined to accept review of this decision.

Earlier this month, a new group of companies filed an almost identical lawsuit in the federal District Court for the Northern District of Texas. This suit appears intended to obtain a more employer-friendly audience at the district court level, and eventually the Fifth Circuit Court of Appeals. If the Fifth Circuit finds for the plaintiffs, the Supreme Court may be forced to resolve the circuit split instead of allowing a situation where OSHA is unable to exercise authority in certain states.

For employers, what would be the result of an ultimate decision declaring the OSH Act unconstitutional? Presumably, this would end federal OSHA enforcement authority as well as the underpinnings of state programs based on the act. Congress would need to adopt new workplace safety legislation identifying the specific hazards for which a new agency has authority to promulgate rules. Given the difficulties in getting any major legislation through Congress and a potential presidential veto, this may result in a long-term absence of federal workplace safety rules, and a hodgepodge of state regulations intended to fill this gap. Even if Congress authorizes new workplace safety legislation, it would have to amend that law each time a new safety issue arises.

In leaving the Sixth Circuit decision undisturbed, the Supreme Court may have wished to avoid this scenario. However, the new lawsuit and the Fifth Circuit’s proclivity to agree with constitutional challenges to seemingly settled issues over executive agency authority may force a full review of these claims.

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