Denver Couldn’t Shut Down Postal Facility Over Virus, But USPS Should Have
The USPS asserts that it has broad authority to ignore state and local law as it sees fit. Its vehicles need not follow traffic law, are not subject to parking fees and don’t need to pass state vehicle inspections. It can design, build and use postal facilities as it sees fit, ignoring density restrictions and other land use rules. It’s able to restrict access to postal properties, even for health and safety inspections that would be required of other retail or warehouse facilities. And it does so without these rules being specifically codified in federal law, instead relying on legal authority of the Constitution’s Supremacy Clause and “Post Offices and Post Roads” provision as a blank check to disregard all non-federal restrictions it may face.
This exemption is not necessarily universal. There’s precedent for Congress to delegate certain aspects of regulatory authority over the USPS to state officials. A 1998 federal law provides that the USPS is an “employer” subject to federal occupational health and safety (OSHA) regulations. Federal OSHA law includes a provision, Section 18, that allows the federal agency to certify state agencies as alternative health and safety regulators for postal facilities. Of particular note for this case, Colorado is not one of the states that requested certification, thus federal OSHA rules would apply rather than any rules the state or its subsidiary units may apply. But the broader point stands. Despite its explicit mention in the constitution and the Supremacy Clause, a federal mail agency is a creature of Congress and may be subject to state regulation if and when the federal legislature chooses to delegate authority.
The USPS is right to assert that current federal law does not require it to follow local guidance on whether to shut down facilities like the Denver processing center to preserve public health. But that doesn’t mean it must ignore the local knowledge of municipal public health officials that regulate analogous private activity.
The ongoing crisis has elicited a remarkably disjointed response from postal officials. Local postmasters have led the charge in adapting facilities to new health and safety demands. Access to personal protective equipment has been uneven. Dozens of postal employees are dead. Many more have fallen ill. 17,000 postal workers were quarantined at some point in the last few months. Yet the agency continues to argue it and only it knows the right way to keep the mail moving, despite reports of slow and irregular delivery times in many communities. With service standards far from universal, maybe it’s time for the USPS to accept that specialists in public health may have a better idea of the risks its facilities face than the federal logistics agency itself.
If that’s not a workable solution, Congress may need to step in on behalf of the health and safety of postal workers once again. Last year, I argued that the USPS would be well served by a federal law that codified specific exemptions from state and local law to limit the moral hazard associated with the postal service’s exemption from traffic and parking laws. In a time of epidemic disease, it may be in USPS employees’ interest that Congress augment its earlier OSHA extension with provisions that require the mail agency to follow state or local rules that apply to other warehouse and retail facilities in times of epidemic disease.
As an extension, it could require the agency to amend its Pandemic Influenza Plan such that it’s able to rapidly shift mail sorting and retail activity both in response to guidance from the postal board and Postmaster General, as well as state and local rules. This could include strengthening communication between local postmasters and relevant officials in host communities, designating preferred channels for this communication to ensure information on facility interruptions is made public such that those who send and receive mail can easily adjust shipping plans, and setting fallback mail standards for periods of pandemic flu that could be incorporated in discussions of a future definition of the USPS Universal Service Obligation.
Image credit: Jonathan Weiss