I am glad the 2.0 version of the Roberts court can’t, and doesn’t seem to have any interest in , writing controlling authority over Nebraska workers’ compensation laws or state workers’ compensation laws period.
Last week the United States Supreme Court struck down OSHA’s proposed vaccine or test rule on the basis that OSHA can only regulate employment risk, not what the Supreme Court called “universal” or public health risks.
Though the cases weren’t about workers’ compensation, the discussion addressed core issues about what kinds of injuries and illnesses are deemed to be related to work.
Universal risk: Neutral risk by another name?
If you practice workers’ compensation law, you might think isn’t a “universal risk” also a “neutral risk” that is often covered by workers’ compensation? A neutral risk is a risk that isn’t specific to a particular employment nor is it something personal to an employee. Severe weather is a prime example of a neutral risk that can be covered by workers’ compensation. So are hazards like ice or potholes in an employers’ parking lot. COVID-19 would seem to fit within that framework.
The dissent in NFIB v. OSHA pointed out that OSHA regulates many risks related to physical facilities that aren’t strictly occupational either. But the majority held that COVID wasn’t purely an occupational risk, so OSHA could not broadly issue rules in all workplaces. There needed to be some showing of a heightened risk of exposure in the workplace for federal regulations to be valid.
Biden v. Missouri: COVID as an occupational risk for health care workers?
One example of such a workplace could be healthcare facilities. In Biden v. Missouri the Supreme Court held narrowly that the Department of Health and Human Services had shown enough of a risk to COVID in medical facilities that accept Medicare and Medicaid that a vaccine or test rule for health care workers passed constitutional muster.
I believe it’s fair to read NFIB v. OSHA and Missouri v. Biden to hold that while COVID exposure may not be an occupational risk in general, it is an occupational risk for health care workers – at least according to the United States Supreme Court.
Interstate commerce v. spending power, part 2?
The Supreme Court upheld the Affordable Care Act on spending powers rather than on interstate commerce powers. It seems like that logic was applied in striking down the general vaccine or test rule, but upholding it for health care workers.
The risk of getting COVID-19, in the eyes of six Supreme Court justices, isn’t something tied directly enough to employment that the federal government can enact general preventative measures. Though the Supreme Court doesn’t state the argument expressly, implicitly the majority is holding the ability of Congress to regulate interstate commerce through the Occupational Safety and Health Act (OSHA) should be narrowly interpreted.
But in Biden v. Missouri, the Supreme Court held that HHS could mandate vaccines for health care employees under the spending powers in facilities that accept Medicare and/or Medicaid.
State workers’ compensation laws, enacted under 10th Amendment police powers, are an area where the Supreme Court recently refused to intervene in a case involving air ambulance billing. Workers’ compensation laws are generally accepted to state laws mostly beyond the purview of federal courts. But even if this decision isn’t controlling, will it be persuasive to state courts?
NFIB v. OSHA as persuasive authority in state workers’ compensation?
When I first read posts about the Supreme Court deeming the “universal risk” of COVID not being an occupational risk, I was worried about that argument being used as persuasive authority in workers’ compensation cases related to COVID-19. Fortunately, the majority opinion holds that states have broader powers to enact workplace safety laws
I think this means, to the extent that states recognize neutral risk in workers’ compensation through either severe weather or risks related to workplace facilities, plaintiffs should be able to cite to them if they assert COVID-19 as a neutral risk. Maybe, NFIB v. OSHA could be a legal thumb or the scale or defendants in state workers’ compensation cases, but the same could be said about Biden v. Missouri for COVID-19 workers’ compensation claims for health care workers.