National Federation of Independent Business v. Department of Labor
On January 13, 2022, the Supreme Court ruled in a 6 to 3 per curiam decision that implementation of the Occupational Health and Safety Administration’s controversial Covid vaccination mandate should be stayed while its lawfulness is being decided in the first instance by the Sixth Circuit. The stay required the Court to evaluate the likelihood of success on the merits of those challenging the sweeping mandate. The reasoning of the per curiam decision on that key question suggests that if the mandate does not perish in the Sixth Circuit, six Supreme Court justices will be happy to dispatch it.
The mandate, adopted by OSHA as an emergency temporary standard in November 2021, requires employers of 100 or more workers to enforce a new requirement that employees either be vaccinated or else wear a mask and submit to a medical test weekly at their own expense and on their own time. Recalcitrant employees would face expulsion from the workplace and large fines. Eighty-four million workers are affected. States, businesses, and trade associations instantly filed lawsuits opposing the mandate. The suits were consolidated in the Sixth Circuit, which lifted a nationwide stay put in place earlier by the Fifth Circuit. The plaintiffs then applied to the Supreme Court for an emergency stay, arguing that OSHA lacks authority to issue such requirements. The Court heard oral argument on January 7 and has now ruled and restored the stay.
Calling the regulation “a blunt instrument” to increase vaccination rates, the Court faulted it for “draw[ing] no distinctions based on industry or [occupational] risk of exposure to COVID–19.” The Court observed that OSHA’s regulations “typically speak to hazards that employees face at work” rather than to “the hazards of daily life” encountered equally as much outside the workplace as in it. This “crucial distinction” suggested to the Court that “the mandate takes on the character of a general public health measure rather than an occupational safety or health standard.
While acknowledging that OSHA may regulate occupational risks arising when “the virus poses a special danger because of the particular features” of a job or workplace (healthcare comes to mind), the Court ruled that OSHA lacks the power to implement broader, public health measures. Because compliance amounts to a “significant encroachment” into the lives and health of 84 million Americans, the Court noted that the challenged regulation is “no everyday exercise of federal power.” The question, then, is whether it is clear from Congress’s own words that it intended to delegate such “vast” powers to OSHA. The Court answered that it is not clear at all. Hence, it held, the challengers are likely to succeed on the merits and are entitled to a stay because “[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.” A trenchant concurrence by Justices Gorsuch, Alito, and Thomas develops the doctrinal basis of the per curiam decision’s refusal to recognize OSHA’s claimed powers.
The new stay runs through consideration of the issue in the Sixth Circuit and thereafter through any appeal to the Supreme Court. Of course, with the per curiam decision, the handwriting is now on the wall for both the Sixth Circuit and OSHA to read. All the while the clock is running on OSHA’s emergency temporary standard, which expires this May. Perhaps the agency will now gracefully retrench and focus on regulating those workplaces that pose specific occupational risks of Covid infection.
–John Pagliaro, Staff Attorney
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