OSHA Vaccine Mandate Stayed at the Supreme Court

In National Federation of Independent Businesses v. Department of Labor, a majority of the Supreme Court stayed enforcement of OSHA’s COVID-19 vaccination and testing regulations. The standard issued by OSHA applies to all individuals working for employers with 100 or more employees. It requires that covered workers receive a COVID-19 vaccine or obtain a COVID test each week at their own expense and on their own time.

Back in September 2021 when President Biden announced OSHA would be working on the vaccine mandate, we predicted that it would not survive judicial scrutiny because such a standard is alien to OSHA’s mission as declared by congressional statute. President Biden was overreaching and not surprisingly the Court checked his plans for a vaccine mandate.

In its opinion, the Court held that the federal statute governing OSHA “empowers the Secretary [of Health and Human Services] to set workplace safety standards, not broad public health measures.” During the appellate briefing, the federal government conceded “that OSHA is limited to regulating “work-related dangers” but then tried to argue that the risk of contracting COVID-19 qualifies as such a danger. Court noted that “COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.

That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” Consequently, “[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.”

The Court acknowledged OSHA’s authority “to regulate occupation-specific risks related to COVID-19” such researchers working directly with the virus or workers who labor in a crowded and cramped setting where virus transmission is highly likely. Occupational risks are thus within OSHA’s regulatory powers, but generally applicable public health measures are not.

In a concurring opinion, Justice Gorsuch pointed out the real danger of the OSHA standard: the untrammeled authority of the Administrative State. Requiring a clear delegation of authority, Gorsuch observed (and quoting the late Justice Antonin Scalia), prevents “government by bureaucracy supplanting government by the people.”

Gorsuch opined that even if OSHA’s reading of its statutory charge was correct, then there would be a significant constitutional problem because the “law would likely constitute an unconstitutional delegation of legislative authority.” There would be no meaningful constraints on the agency and “OSHA would become little more than a ‘roving commission to inquire into evils and upon discovery correct them.'”