January 13, 2022
Decided January 13, 2022
National Federation of Independent Business v. Occupational Safety and Health Administration, No. 21A244; and
Ohio v. Occupational Safety and Health Administration, No. 21A247
On Thursday, January 13, 2022, by a 6–3 vote, the Supreme Court prevented the implementation of an OSHA rule that would have imposed a vaccine-or-testing regime on employers with 100 or more employees.
On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an emergency temporary standard (“ETS”) governing employers with 100 or more employees. The ETS mandated covered employers to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers” that require unvaccinated employees to undergo weekly COVID-19 testing and to wear a mask during the workday.
Business groups and States filed petitions for review of the ETS in each regional Court of Appeals, contending that OSHA exceeded its statutory authority under the Occupational Safety and Health Act. The Fifth Circuit stayed the ETS and later held that the OSHA mandate was overly broad, not justified by a “grave” danger from COVID-19, and constitutionally dubious. After all petitions for review were consolidated in the Sixth Circuit, that court dissolved the Fifth Circuit’s stay. The panel majority held that COVID-19 was an emergency warranting an ETS and that OSHA had likely acted within its statutory authority.
Whether to stay implementation of the vaccine-or-testing mandate pending the outcome of litigation challenging OSHA’s statutory authority to require employers with 100 or more employees to develop, adopt, and enforce a vaccine-and-testing regime for their employees.
The vaccine-or-testing mandate should be stayed because OSHA likely lacks the statutory authority to adopt the vaccine-or-test mandate in the absence of an unmistakable delegation from Congress.
“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.”
Per Curiam Opinion of the Court
What It Means:
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|Bradley J. Hamburger
Related Practice: Labor and Employment:
|Jason C. Schwartz
|Katherine V.A. Smith