January 13, 2022

Supreme Court Decides Nat’l Fed. of Independent Business v. Occupational Safety and Health Administration

On January 13, 2022, the U.S. Supreme Court stayed the application of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard mandating COVID-19 vaccinations for certain employees, holding that the groups and businesses challenging the standard were likely to succeed in showing that the mandate exceeded OSHA’s statutory authority. Nat’l Fed. of Independent Business v. Occupational Safety and Health Administration, Nos. 21A244 and 21A247.

On November 5, 2021, OSHA published an emergency temporary standard applying to all employers with 100 or more employees. OSHA estimated that 84.2 million employees were covered by the standard. The standard required covered employers to “develop, implement, and enforce a mandatory COVID-19 vaccination policy.” Employers could, but were not required to, allow employees to forego being vaccinated if they would wear face coverings and be tested weekly.

The standard was immediately challenged in every circuit. The Fifth Circuit initially stayed the standard’s implementation. But by random selection, the cases challenging the standard were consolidated in the Sixth Circuit, which in a 2-1 panel opinion lifted the stay. The Supreme Court ordered expedited briefing on stay applications and heard argument on January 7, 2022.

In a per curiam opinion joined by six justices, the Supreme Court stayed the standard, holding that it was likely to exceed OSHA’s statutory authority. OSHA, the Court held, is tasked with ensuring “occupational safety — that is, ‘safe and healthful working conditions.’” It is not, however, tasked with regulating public health generally. According to the Court, “[p]ermitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.” Absent that clear authorization, OSHA had no power to impose a rule of such “vast economic and political significance.” 

The Court therefore stayed the mandate pending resolution of the challenges to it in the Sixth Circuit, as well as resolution of any further proceedings in the Supreme Court.

The per curiam opinion of the Court was joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Gorsuch filed a concurring opinion, in which Justices Thomas and Alito joined. Justices Breyer, Sotomayor, and Kagan filed a joint dissenting opinion.

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