NFIB v. OSHA
595 U. S. ____ (2022) (2022)
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Rule of Law:
The Occupational Safety and Health Act (OSH Act) does not plainly authorize the Occupational Safety and Health Administration (OSHA) to impose a vaccine-or-test mandate as a broad public health measure for the general workforce, as its authority is limited to regulating occupational hazards specific to the workplace.
Facts:
- Congress enacted the Occupational Safety and Health Act in 1970, creating OSHA and tasking it with ensuring "safe and healthful working conditions" by enforcing occupational safety and health standards.
- The Act contains an exception for "emergency temporary standards," which are permissible only if the Secretary shows that employees are exposed to grave danger from toxic or physically harmful substances/agents or new hazards, and the standard is necessary to protect them.
- On September 9, 2021, President Biden announced a plan for the Department of Labor to issue an emergency rule requiring all employers with at least 100 employees to ensure their workforces are fully vaccinated or show a negative test weekly.
- On November 5, 2021, the Secretary of Labor, through OSHA, issued an emergency temporary standard requiring employers with 100 or more employees to adopt a mandatory COVID-19 vaccination policy or enforce weekly testing and masking for unvaccinated employees.
- The OSHA mandate applied to approximately 84 million employees across most industries, with narrow exemptions for remote or exclusively outdoor workers, and purported to pre-empt contrary state laws.
- Employers found in violation of the mandate faced significant fines, up to $13,653 for a standard violation and $136,532 for a willful one.
Procedural Posture:
- Scores of parties, including States, businesses, trade groups, and nonprofit organizations, filed petitions for review of OSHA’s vaccine mandate in various regional U.S. Courts of Appeals.
- The Fifth Circuit Court of Appeals initially entered a stay on OSHA’s rule pending further judicial review, holding that the mandate likely exceeded OSHA’s statutory authority and raised separation-of-powers concerns.
- The cases were consolidated in the Sixth Circuit Court of Appeals, selected at random pursuant to 28 U.S.C. §2112(a).
- The Sixth Circuit denied a request for initial hearing en banc by an evenly divided 8-to-8 vote.
- A three-judge panel of the Sixth Circuit then dissolved the Fifth Circuit’s stay, holding that OSHA’s mandate was likely consistent with the agency’s statutory and constitutional authority.
- Various parties, including the National Federation of Independent Business (as applicants in No. 21A244) and a coalition of States (as applicants in No. 21A247), filed applications with the Supreme Court requesting a stay of OSHA’s emergency standard.
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Issue:
Does the Occupational Safety and Health Administration (OSHA) have the statutory authority under the Occupational Safety and Health Act to issue an emergency temporary standard requiring employers with 100 or more employees to implement a mandatory COVID-19 vaccination policy or require weekly testing and masking for unvaccinated employees?
Opinions:
Majority - Per Curiam
No, the Occupational Safety and Health Administration (OSHA) does not have the statutory authority under the Occupational Safety and Health Act to issue an emergency temporary standard requiring employers with 100 or more employees to implement a mandatory COVID-19 vaccination policy or require weekly testing and masking for unvaccinated employees, because the Act empowers OSHA to set workplace safety standards, not broad public health measures. The Court found applicants were likely to succeed on the merits, applying the "major questions doctrine" which requires Congress to speak clearly when authorizing an agency to exercise powers of "vast economic and political significance." The mandate, affecting 84 million workers and requiring a significant medical procedure, clearly met this threshold. The Court reasoned that the OSH Act empowers the Secretary to set "occupational safety standards" (29 U.S.C. §655(b)), which are distinct from broad public health measures. COVID-19 is a risk that occurs in many workplaces but is not an "occupational hazard in most" because it spreads universally (at home, in schools, etc.), like crime or air pollution. Allowing OSHA to regulate universal hazards simply because people work would vastly expand its authority without clear congressional authorization. While OSHA could regulate occupation-specific COVID-19 risks (e.g., researchers working with the COVID-19 virus), its indiscriminate approach here failed to account for the crucial distinction between occupational risk and general public health risk. The Court noted OSHA's half-century history lacked precedent for such a broad public health regulation untethered from the workplace. The Court concluded that the equities did not justify withholding interim relief, as states and employers faced billions in compliance costs and potential employee departures, while the federal government's claimed benefits (lives saved, hospitalizations prevented) were a matter for democratic processes, not agency regulation beyond its delegated scope.
Concurring - Justice Gorsuch
No, OSHA lacks the authority to issue such a broad mandate; this power rests with states and Congress, as the agency has not been clearly delegated the authority to make decisions of "vast economic and political significance." Justice Gorsuch, joined by Justices Thomas and Alito, concurred, emphasizing the "major questions doctrine." He reiterated that state and local authorities possess considerable general public health powers, but federal powers are limited and divided. The doctrine requires Congress to speak clearly when delegating decisions of "vast economic and political significance" to an executive agency. OSHA's mandate, affecting 84 million Americans with a significant medical procedure, is clearly such a decision. Congress has passed several major pieces of COVID-19 legislation but has nowhere clearly assigned this specific authority to OSHA; indeed, a majority of the Senate even voted to disapprove the regulation. He noted that Section 655(c)(1), enacted 50 years ago, was for modest workplace-specific dangers like asbestos and rare chemicals, not a nationwide public health measure affecting lives outside the workplace. The major questions doctrine, he explained, is closely related to the nondelegation doctrine, both serving to protect separation of powers and democratic accountability by ensuring legislative power remains with elected representatives. Allowing OSHA's interpretation would effectively grant it "almost unlimited discretion," turning it into a "roving commission to inquire into evils and upon discovery correct them." The fundamental question, he concluded, is not how to respond to the pandemic, but who holds the power to do so, and under current law, that power rests with the States and Congress, not OSHA.
Dissenting - Justice Breyer, Justice Sotomayor, and Justice Kagan
Yes, OSHA does have the statutory authority to issue this emergency temporary standard because COVID-19 poses a "grave danger" to employees in workplaces as a "new hazard" and "physically harmful agent," and the standard is "necessary" to protect them, falling squarely within the agency's core mission and statutory mandate. Justices Breyer, Sotomayor, and Kagan dissented, arguing the Court seriously misapplied legal standards and stymied the Federal Government's ability to counter the unparalleled pandemic threat to the Nation's workers. They asserted that the OSH Act commands OSHA to issue an emergency temporary standard whenever it determines employees are exposed to "grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards," and such a standard is "necessary to protect employees from such danger." They contended that COVID-19 is undeniably a "new hazard" and "physically harmful agent" posing a "grave danger" in workplaces, having killed nearly 1 million Americans. The standard, requiring vaccination or testing/masking, is "necessary" as it is based on a host of meticulous studies and government reports showing these measures' unparalleled efficacy in limiting COVID-19's threat in most workplaces. They argued the majority's limitation—that OSHA cannot regulate hazards existing both inside and outside the workplace—is unsupported by the Act's text, as OSHA has historically regulated universal risks like fire, noise, and unsafe drinking water when present in workplaces. They pointed to the American Rescue Plan Act of 2021, which appropriated $100 million for OSHA's COVID-19 worker protection activities. They emphasized that COVID-19 poses special risks in most workplaces due to close, extended contact, and employees' limited control, and that the standard was tailored with appropriate exemptions. The dissent concluded that the balance of harms and public interest decisively supported the standard, citing OSHA's estimate of 6,500 lives saved and 250,000 hospitalizations prevented in six months. They criticized the Court for displacing the judgments of experts and elected officials, undermining the agency's capacity to protect American workers from grave danger, and acting outside of its competence and without legal basis.
Analysis:
This case significantly limits the regulatory power of federal agencies, especially during nationwide emergencies, by reinforcing the "major questions doctrine." It signals that the Supreme Court will require extremely clear statutory authorization from Congress for agencies to enact rules of "vast economic and political significance," thereby reasserting congressional supremacy in major policy decisions. Future cases involving agency action on broad societal issues, even those impacting specific workplace conditions, will likely face heightened scrutiny regarding the scope of delegated authority. The ruling will make it more difficult for executive agencies to respond comprehensively to widespread crises without explicit new legislation from Congress, potentially slowing government responses to emergent national challenges.
