Updated: Nov 6, 2022
OSHA Regulations Can Apply In States, With Caveats
To start, while I am a credentialed safety professional, I am not a lawyer, attorney, or other legal expert. Therefore, none of the contents of this blog posts should be taken to be legal advice or similar. With that out of the way, the short answer is yes, OSHA regulations as lawfully made under the updated Occupational Safety and Health Act of 1970, can apply within the states. How can this be some of you might ask? Others of you may be saying well yeah. It's obvious that they can apply their regulations in the states. Well, let's trace a bit of the constitutionality of OSHA.
A Trip Down Constitutional Lane
If you look at the act that formed it, the US Congress made this law using their powers to regulate commerce among the several states (and with foreign nations) as well as to provide for the general welfare. When you look up the definition of among, you usually find it saying something akin to around or between. This is where the congressional power of interstate commerce comes in. Providing for the general welfare doesn't appear explained or defined in the document of the constitution itself. Nevertheless, it is clear in Article 1 Section 8 of the Constitution that Congress does indeed have these powers to what ever actual degree.
Congress also has legislative or law making powers. So, they do have sufficient powers to create OSHA by appropriate law. But, that law is supposed to flow from and follow the actual powers they have. So, based on the language used in the Constitution, it would make sense that OSHA would be able to regulate commerce when it rises to the level of interstate commerce. And, it could be argued that they could apply their regulations in the workplace in instances where a commercial entity (business) is engaged in actual interstate commerce. I do want to note that I so far have not seen commerce defined or explained in the Constitution either.
But what about the situations when commerce doesn't rise to the level of interstate? What about when commerce is not among the several states, but instead is within a state? Well, the Constitution didn't say it gave Congress power to regulate commerce within the several states. And, via the Tenth Amendment (paraphrased) what isn't actually given to the federal government or prohibited to the states by the Constitution, is left to the states or the people. That, at least to me, strongly says that the states have the power and responsibility of taking care of health and safety in the workplace within their borders.
Am I Talking Politics Now?
It may sound like I am making a case for why OSHA might need to back off in the workplace in at least some significant cases. Well, I am. But not because I don't think safety in the workplace isn't an important thing. Far from that. What I am discussing is which body of government should be doing the bulk of it? I'd say that the states should. The states are, or at least should be, closer to their people. If the people of the state are concerned, then the states should be too.
Some of you may be wondering why I am talking about something that could be seen as political. Well, darn near everything seems to be these days. And if you think about compliance, where does it lead you? Back to the government and back to politics, unfortunately. I do not wish to diminish the need for improvement in health and safety. But any compliance put on the states, businesses, and people must itself be compliant. And as is often the case with many things, you have to check in on it to make sure things are going correctly.
Now, there is nothing (except potentially our cultural differences) that may be getting in the way of having a convention on this and many other issues. But if the system is to work, Americans need to have those conversations. If it turns out that the country really wants an administration like OSHA to have country wide authority within a state, then pass an amendment and make it so. If not, then take a hard look at what the Constitution says. Don't think you have to be a legal scholar to have an opinion on it and safety in your workplace. After all, laws and regulations can be applied to you regardless of your status of passing the bar exam. Keep thinking and discussing things, friends!