In National Federation of Independent Business, et al v. Department of Labor, Occupational Safety and Health Administration, et al, 595 U.S. ___ (Jan. 13, 2022), the U.S. Supreme Court stayed OSHA’s emergency temporary standard that required certain private employers (with at least 100 employees) to require covered workers to receive a COVID-19 vaccine, with an exception for workers who obtain a medical test each week and wear masks.
In sum, the Court held that the applicants were likely to succeed on the merits of their claim that the Secretary of Labor lacked authority to impose the mandate.
The Court explained:
Administrative agencies are creatures of statute.
They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no everyday exercise of federal power. It is instead a significant encroachment in to the lives – and health – of a vast number of employees. … The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing
the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace).
Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. See, e.g., §§651, 653, 657. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise. …
The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” Response Brief for OSHA in No. 21A244 etc., p. 45 (OSHA Response). She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although 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. Permitting 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 rejected the comparison between OSHA’s vaccine mandate and a “fire or sanitation regulation imposed by the agency”, noting that “a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed” since a “vaccination … cannot be undone at the end of the workday.”
The Court concluded by ordering that OSHA’s COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought.
Justices Gorsuch (joined by Justices Thomas and Alito) filed a concurring opinion; Justices Breyer, Sotomayor, and Kagan filed a dissenting opinion.