The United States Supreme Court is set to hear arguments Monday on what is hopefully the narrow issue of whether inter-governmental immunity applies to a Washington state law that creates a presumption of compensability for occupational diseases for workers at the federal Hanford nuclear site.

Under the Supremacy Clause, states can’t tax or regulate federal entities without the permission of the federal government. During the New Deal era, Congress allowed state workers’ compensation laws to apply to workers’ on federal projects.

In United States v. State of Washington, the federal government is arguing the State of Washington is unlawfully discriminating against the federal government by enacting a law that only applies to workers at the Hanford site. The state of Washington amended the statute to apply the presumption to all nuclear workers and is arguing the federal government’s case is now moot.

So why should anyone outside the state of Washington care about this case? Beyond the conflict between state workers’ compensation laws and federal law (what Professor Micheal Duff sometimes deems empty preemption), this case interests me because it places the issue of issue of burden-shifting presumptions in front of the United States Supreme Court.

To be clear, the federal government isn’t contesting the state of Washington can create presumptions. But in the wake of the COVID-19 pandemic, many states created presumptions of compensability for COVID-19 exposure in the workplace because of the difficulty of proving whether COVID-19 was covered under traditional workers’ compensation statutes. Some of the employer/insurer-side of workers’ compensation are complaining about the unfairness of these presumptions. Thankfully, no one from the employer/defense-side has filed an amicus brief in this case.

However, the Workplace Injury Law and Advocacy Group (WILG) filed a brief in support of the Washington law. (I am a board member for WILG) I think the WILG brief does a good job of arguing that workers’ compensation is traditionally a state law concern and that presumptions have been found constitutional by state Supreme Courts. But I have a lingering fear about some footnote, dicta, concurring opinion or dissent that criticizes the idea burden-shifting presumptions in general. While that language wouldn’t be controlling on states, it could certainly be persuasive for parties seeking to challenge presumption laws.