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  • John Kulevich

U.S. Supreme Court Says OSHA Does Not Have the Authority to Issue Covid -19 Vaccine Mandate

By now, you have probably heard that on January 13, 2022, the United States Supreme Court struck down the Covid-19 “vaccine mandate” enacted by the Occupational Safety and Health Administration. (Specifically, the Court “stayed” or stopped the mandate’s implementation.) The case is National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration, 595 U.S. ___ (2022). As with other polarizing issues that the Supreme Court has ruled on (e.g., gay marriage, abortion, or gun rights), much of the publicity this case has been receiving focuses on the result of the case (stopping the mandate), rather than the reasoning the Supreme Court used to reach that result. You might be surprised to know that the reasoning the Court used to issue its ruling in this case had more to do with the authority of the Occupational Safety and Health Administration (OSHA) to enact a vaccine mandate rather than whether or not a vaccine mandate is the proper way to respond to the pandemic.


Summarized, the OSHA vaccine mandate requires all employers with at least 100 employees to make sure either (1) all of their employees are fully vaccinated, or (2) all of their employees show a negative test once a week (at the employee’s expense) and wear a mask at all times at work. Unvaccinated employees who refuse to wear masks and test weekly would need to be fired or the employer could face substantial fines. The mandate would apply to approximately 84 million employees.


The Court discussed the creation of OSHA, which is part of the Department of Labor. As the name suggests, Congress created OSHA to ensure occupational safety. OSHA, like other administrative agencies, only has the authority that Congress gives it. If Congress intends to give an agency authority to regulate areas of broad economic and political significance, it must say so explicitly. This is so that Congress cannot delegate its power to unelected officials in government agencies. In other words, Congress should be held accountable to the people if it seeks to regulate the lives of millions of Americans. In the view of the majority, “[g]overnment by bureaucracy [should not] supplant[] government by the people.” National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration, 595 U.S. ___ (2022) (Gorsuch, J., concurring) (internal quotations omitted).


Despite the fact that OSHA can regulate work-related dangers, and set workplace safety standards, the Court held that significantly expanding OSHA’s authority (without clear Congressional authorization) by allowing it to impose a vaccine mandate on 84 million Americans was not part of OSHA’s purpose. OSHA’s authority is limited to occupational hazards, and Covid-19, although a risk in the workplace, is also a universal, or day-to-day risk. A vaccine mandate, therefore, would be in the nature of a “general public health measure, rather than an ‘occupational safety or health standard.’” National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration, 595 U.S. ___ (2022) (per curiam). However, the Court goes on to say that OSHA would have the authority to regulate occupation specific risks related to Covid-19. For example, OSHA could regulate researchers working directly with the Covid-19 virus in labs.


So, the question before the Supreme Court, according to the majority of the justices, was “not how to respond to the pandemic, but who holds the power to do so,” and the Court concluded that the answer was Congress, not OSHA. See National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration, 595 U.S. ___ (2022) (Gorsuch, J., concurring).


The dissent cites OSHA’s authority to issue emergency occupational safety standards where (1) “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) where those standards are necessary to protect employees from that danger. See National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration, 595 U.S. ___ (2022) (Breyer, Sotomayor, and Kagan, JJ., dissenting). In the dissent’s view, Covid-19 is a “grave danger,” as well as a “physically harmful” agent and a “new hazard.” Therefore, OSHA was simply acting under this authority to issue emergency occupational safety rules. See Id. The dissent explains that a vaccine mandate is similar to other OSHA regulations dealing with things like fire risks, sanitation, excessive noise, unsafe drinking water, or emergency exits.


The majority, however, argues that OSHA’s authority to enact emergency rules has only resulted in “comparatively modest rules” regarding things like asbestos or other rare chemicals. See National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration, 595 U.S. ___ (2022) (Gorsuch, J., concurring). Further, the majority notes that vaccination “cannot be undone at the end of the workday.” National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration, 595 U.S. ___ (2022) (per curiam).


Perhaps you can see the main difference between the majority and the dissent’s reasoning: the majority takes a narrower reading of OSHA’s authority, while the dissent would give OSHA more authority to enact a sweeping rule like the Covid-19 vaccine mandate. The majority thinks only Congress has the authority to issue a vaccine mandate, while the dissent would allow a government agency to enact the mandate, even if Congress chooses not to.


While many people understandably focus on the result of the case, it is important to know how the Court arrives at that result. Deciding cases at any level requires the unbiased application of certain legal standards, regardless of the outcome it leads to. Here, without deciding whether a vaccine mandate is the proper way to address the pandemic, the Court held that because precedent requires Congress to speak clearly when delegating vast authority to a government agency, the absence of clear language giving OSHA broad authority to do something like issue a vaccine mandate meant that OSHA in fact did not have the authority to issue such a mandate.




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