National Federation of Independent Business v. Department of Labor, Occupational Safety & Health Administration, 142 S. Ct. 661 (2022)
On January 13, 2022, the U.S. Supreme Court published a landmark ruling regarding the COVID-19 vaccine mandate issued by the Occupational Safety and Health Administration (OSHA), a division of the U.S. Department of Labor. The mandate would have impacted more than 80 million workers. Various parties, including States and businesses, filed multiple lawsuits challenging the mandate in federal courts of appeals. The lawsuits were consolidated in the United States Court of Appeals for the Sixth Circuit, which dissolved a stay previously entered, thus allowing the mandate to take effect. At further request, the Supreme Court heard expedited arguments on January 7, 2022.
A. Factual Background
OSHA was created under Congress’s Occupational Safety and Health Act, which contains an exception to those ordinary notice-and-comment procedures for an emergency temporary standard (ETS). 29 U.S.C. § 655(c)(1). Such an ETS shall be provided to “take immediate effect upon publication in the Federal Register.” Id.
To require more Americans to be vaccinated, as announced by President Biden on September 9, 2021, the Secretary of Labor acting through OSHA enacted the vaccine mandate. On November 5, 2021, OSHA issued the ETS strongly encouraging COVID-19 vaccination in order to protect unvaccinated employees of large employers. 86 Fed. Reg. 61, 402 (Nov. 5, 2021). Employers with more than 100 employees must “develop, implement, and enforce a mandatory COVID-19 vaccination policy,” unless they instead adopt “a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.” Id.
B. Procedural Background
Shortly after the mandate’s publication, a diverse group of petitioners─including covered employers, States, religious groups, and individual citizens─moved to stay and permanently enjoin the mandate in federal courts of appeals across the nation. The Fifth Circuit imposed a temporary stay on OSHA’s enforcement of the mandate during pendency of further judicial review. It held that the one-size-fits-all mandate is “staggeringly overbroad” and, more importantly, likely exceeded OSHA’s statutory authority. BST Holdings, L.L.C. v. Occupational Safety and Health Admin., 17 F.4th 604 (5th Cir. 2021).
All petitions have been consolidated in the Sixth Circuit, which was selected at random. On November 23, 2022, the federal government moved to dissolve the stay. In determining whether the stay was merited, the Sixth Circuit considered four factors: (1) the stay applicants’ likelihood of success on the merits; (2) irreparable harm on the applicant; (3) other parties’ interest; and (4) the public interest. In re MCP No. 165, 21 F.4th 357, 369 (6th Cir. 2021). The majority concluded that the applicants here did not “establish a likelihood of success on the merits,” and found that the factors regarding irreparable injury weighed in favor of the government and the public interest. In re MCP No. 165, 21 F.4th at 357. Therefore, the stay issued by the Fifth Circuit was lifted.
The applicants further sought emergency relief from the Supreme Court. Through a per curiam opinion, the Court found that the applicants’ challenging the OSHA mandate would likely prevail and thus reinstated the stay preventing the mandate from going into effect. Nat’l Fed’n of Indep. Bus. v. Occupational Safety and Health Admin., 142 S. Ct. 661 (2022).
The Court blocked OSHA’s mandate mainly on the ground that “the Secretary lacked authority to impose the mandate.” Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 664-65. The Court criticized OSHA’s mandate as a “blunt instrument” drawing “no distinctions based on industry or risk of exposure to COVID-19.” Id. at 664. The Court emphasized that Congress should “speak clearly when authorizing an agency to exercise powers of vest economic and political significant,” and held that the Occupational Safety and Health Act did not authorize OSHA to issue the mandate that would affect the lives of a vast number of employees. Id. at 665 (emphasis added). The Court continued to argue that OSHA acted outside of its statutory authority to regulate occupational hazards, and the safety and health of employees because “[a]lthough COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” Id. Instead, the Court characterized COVID-19 as a “universal risk.” Id. Since OSHA is not empowered to set broad public health measures, permitting OSHA to regulate the hazards of daily life by the mandate “would significantly expand OSHA’s regulatory authority without clear congressional authorization.” Id.
In a concurring opinion, Justice Gorsuch focused on a central question: “Who decides?” See id. at 667 (Gorsuch, N., concurring). Like the majority, Justice Gorsuch explained that “OSHA claim[ed] the power to issue a nationwide mandate on a major question but [could not] trace its authority to do so to any clear congressional mandate.” Id. at 669. Furthermore, as Justice Gorsuch underscored, the major questions doctrine serves a function similar to the nondelegation doctrine “by guarding against unintentional, oblique, or otherwise unlikely delegations of the legislative power.” Id. Accordingly, he asserted that even if Congress’s Act did endow OSHA with the power it asserts, “that law would likely constitute an unconstitutional delegation of legislative authority.” Id.
Justices Breyer, Sotomayor, and Kagan co-authored a dissenting opinion. See id. at 671 (Breyer, S., dissenting). The dissenting justices started by pointing out that OSHA’s mandate is a vaccine-or-test rule, but the majority obscured this choice by insistently calling the policy a “vaccine mandate.” Id. They then argued that procedurally the Court should not have stayed OSHA’s mandate because the applicants have not established that their entitlement to such a relief was “indisputably clear.” Id.
Furthermore, the dissent contended that OSHA’s mandate “perfectly fit” the language of 29 U.S.C. § 655(c)(1), which commands OSHA to issue an ETS whenever it determines, “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” Id. at 671-72. The dissent reasoned that the COVID-19 virus is clearly a “new hazard” and “physically harmful” agent posing a “grave danger” to millions of employees in most workplaces, and that the mandate was “necessary”, as evidence supports, to address the danger in order to reduce the risk of transmission, hospitalization, and death. Id. at 672. As the dissent further explained, “[t]he statute does not require that employees are exposed to those dangers only while on the workplace clock,” so COVID-19 virus is an occupational hazard even though it exists both inside and outside the workplace. Id. at 673. In response to the majority’s “lack of historical precedent” assertion, the dissent argued that OSHA’s mandate responded to a workplace health emergency unprecedented in the agency’s history. Id. at 675 (emphasis added).
Besides the merits, the dissent also argued that the balance of harms and the public interest did not support the majority’s ruling. Id. As the majority indicated, the applicants, including the States and the employers, were concerned about two economic harms: “incur[ring] billions of dollars in unrecoverable compliance costs” and “caus[ing] hundreds of thousands of employees to leave their jobs.” Id. at 666. However, the dissent pointed out that OSHA showed, on the contrary, that many employees “would be more likely to stay at or apply to an employer complying with the [OSHA’s] safety precautions.” Id. at 675 (2022). Moreover, the dissent contended that the public interest in “protecting workers from disease and death” significantly outweighed the applicants’ alleged costs. Id.
The Supreme Court’s ruling in Nat’l Fed’n of Indep. Bus. will likely be highly cited in determining federal public health authority and thus will have a profound impact on national regulation of American workplaces. In a short term, the Supreme Court’s decision on OSHA’s mandate leaves businesses free to adopt their own vaccine mandates with exceptions in a few states. Some employers may decide to drop plans to require vaccination or administer weekly testing programs, and others can retain policies that align with the mandate. However, employers may still have to comply with other COVID-19 vaccination rules at the state, local and industry level.
In a separate decision issued the same day as the ruling on OSHA’s mandate, the Court allowed the federal Centers for Medicare & Medicaid Service (CMS) to require COVID-19 vaccination for health care workers. Biden v. Missouri, 142 S. Ct. 647 (2022). The Supreme Court’s parallel decisions on OSHA’s mandate and CMS’s rule demonstrated its views on the scope and limits of agency actions.
By applying the major questions doctrine, the Court in Nat’l Fed’n of Indep. Bus. made it clear that broader mandates must come from Congress or the states, unless there is clear statutory language that grants a federal agency the power to issue such a mandate. In the meantime, the Court left the door open for OSHA to develop a narrower mandate for employers whose employees are at greater risk of COVID-19.
It is worth mentioning that, like Justice Gorsuch, the dissent raised at the very end of the opinion a question on who decides, but from a different perspective. In the dissent’s functional view, the answer choices were between OSHA, the agency with experience and expertise, and the Court which lacks any knowledge of how to safeguard workplaces. The dissent believed that the Court could have showed deference to the judgement of OSHA about the need for actions during such an unprecedented emergency to protect public health. Nat’l Fed’n of Indep. Bus.,142 S. Ct. at 676.
The United States has long maintained a patchwork system of public health authority that is split amongst local, state and federal authorities.1 It is fair to say that the core issue here is not how to respond to the pandemic, but who holds the power to do so. “Under the law as it stands today, that power rests with the States and Congress, not OSHA.” Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 670. The decision on OSHA’s mandate, though vastly important, may not be the last word on how to apply the major questions doctrine to public health regulation in view of the fundamental separation of powers.
*Landing image by Daniel Schludi on Unsplash.