OSH Law Primer, Part XVII: Preemption

Quick Hits

• Section 4(b)(1) of the OSH Act stipulates that OSHA’s jurisdiction over workplace safety is preempted when another federal agency exercises its authority to regulate specific working conditions.
• The Supreme Court’s unanimous 2002 decision in Chao v. Mallard Bay Drilling, Inc., established that OSHA’s authority is preempted only by actual, specific regulatory actions of another federal agency.
• Mallard Bay Drilling’s reasoning has helped to clarify enforcement boundaries and facilitate worker protection by allowing OSHA to enforce standards where other agencies have not regulated specific hazards.

This series has been designed to deepen readers’ understanding of the OSH Act and OSHA and equip those who are committed to workplace safety and health—and due process—with essential knowledge to make sense of the laws, policies, regulations—the legal context and structure—that frame and undergird the work we do every day.

The first article in the series provided a general overview of the OSH Act and OSHA; the second article examined OSHA’s rulemaking process; the third article reviewed an employer’s duty to comply with standards; the fourth article discussed the general duty clause; the fifth article addressed OSHA’s recordkeeping requirements; the sixth article covered employees’ and employers’ respective rights; the seventh article addressed whistleblower issues; the eighth article covered the intersection of employment law and safety issues, the ninth article discussed OSHA’s Hazard Communication Standard (HCS); the tenth article examined voluntary safety and health self-audits; the eleventh article, in two parts, reviewed OSHA’s citation process; the twelfth article covered OSHA inspections and investigations; the thirteenth reviewed OSHA’s ability to seek criminal penalties; the fourteenth article examined judicial review under the OSH Act; the fifteenth addressed imminent danger inspections; and the sixteenth focused on states with OSHA-approved plans. In this final article of the series, we address preemption.

Section 4(b)(1) of the OSH Act states:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

Thus, one need look no further than the OSH Act to see the concept of preemption as it relates to OSHA’s jurisdiction over the workplace. While the concept appears to be clear and understandable—OSHA lacks jurisdiction where another federal agency exercises authority and prescribes or enforces regulations relating to occupational safety and health—the concept proves more illusory in application.

The Supreme Court’s Mallard Bay Drilling Decision

The Supreme Court of the United States’ unanimous decision in Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235 (2002), was a landmark case that clarified the scope and application of preemption under Section 4(b)(1) of the OSH Act. The Court resolved a split among the federal circuits and established a clear, practical standard for when OSHA’s authority is preempted by another federal agency.

First, there must be an actual exercise of authority by the other federal agency. The Court held that OSHA’s jurisdiction is preempted only when another federal agency has actually “exercised” its statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health with respect to specific working conditions that are at issue. Mere possession of regulatory authority by another agency is not enough.

The second prong of the standard is that there is no industry-wide or blanket preemption. The decision rejected the notion of industry-wide or categorical preemption. Preemption is not triggered simply because another agency (such as the United States Coast Guard, in the case of Mallard Bay Drilling) regulates some aspects of an industry. Instead, preemption is limited to those working conditions that are actually regulated by the other agency.

The Court also emphasized that preemption under Section 4(b)(1) is a fact-specific, hazard-by-hazard inquiry. OSHA retains authority over hazards or working conditions that are not specifically addressed by another agency’s regulations. While this is closely related to the second prong of the standard, it is unique and has led to parsing of decisions concerning jurisdictional boundaries in sometimes seemingly contradictory fashion.

The Court clarified that memoranda of understanding (MOUs) between agencies, such as the Federal Railroad Administration and OSHA, may clarify enforcement boundaries, but do not themselves establish preemption. The decisive factor is whether the other agency has exercised its authority over the particular working condition.

The practical impact of the Mallard Bay Drilling case is important for employees and employers. The decision ensures that workers are not left unprotected due to regulatory gaps. If another agency has not regulated a specific hazard, OSHA can step in to enforce its standards. It also provides both employers and agencies with a clear standard for determining when OSHA’s authority is preempted, reducing confusion and litigation over jurisdictional boundaries.

The Mallard Bay Drilling decision also serves as the leading authority for federal courts, the Occupational Safety and Health Review Commission (OSHRC), and federal agencies analyzing preemption under the OSH Act.

Since Mallard Bay Drilling, courts and agencies have consistently applied its decisional principles, requiring a showing of actual, specific regulatory action by another agency before finding OSHA preemption. The decision is frequently cited in disputes involving overlapping federal jurisdiction, such as with the Federal Motor Carrier Safety Administration, the Pipeline and Hazardous Materials Safety Administration, and others.

Highly significant for its OSHA preemption analysis, Mallard Bay Drilling has ensured that preemption is narrowly construed, based on actual regulatory action, and that OSHA’s protective mandate remains robust except where another agency has clearly and specifically acted. This approach promotes comprehensive worker safety and regulatory clarity.

Staying Informed

Ogletree Deakins’ Workplace Safety and Health Practice Group regularly publishes articles on the Workplace Safety and Health blog and produces podcasts and webinars as part of its ongoing coverage of workplace safety and health developments.

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