Supreme Court Stays Implementation of OSHA's COVID-19 Vaccine Rule

January 13, 2022

By: Stephen B. Stern

     In National Federation of Independent Business v. Department of Labor, Nos. 21A244 and 21A247 (U.S. Jan. 13, 2022), the United States Supreme Court on Thursday (January 13) granted a stay that prevents the Occupational Safety and Health Administration (“OSHA”) from implementing its emergency standard that mandated employers with 100 or more employees either require their employees to be vaccinated against COVID-19 or wear masks in the workplace and get tested weekly.  This ruling reverses the decision of the United States Court of Appeals for the Sixth Circuit just one month earlier in which the Sixth Circuit lifted a stay issued by the United States Court of Appeals for the Fifth Circuit and which allowed the OSHA rule to take effect (see summary here).

     The Court started its analysis by examining the purpose of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651, et seq. (the “Act”).  The Court specifically noted that OSHA’s purpose is to ensure “occupational safety.” (emphasis added by the Court).  The standards implemented by OSHA must be “reasonably necessary or appropriate to provide safe and healthful employment.” (emphasis added by the Court).  

     The Court noted that the Act included an exception to the typical notice and comment procedures that must be utilized to implement a regulation, and that exemption is known as “emergency temporary standards.”  The emergency procedures may be implemented only in limited circumstances, and the Secretary of Labor must show: (1) “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 (2) the “emergency standard is necessary to protect employees from such danger.”  Since the Act took effect, these emergency procedures were utilized nine times, with six of them challenged in court, and only once were those emergency procedures upheld.

     When examining the content of the emergency standard promulgated by OSHA, the Court identified certain limited exceptions to the vaccine/testing/mask mandate, which included employees who worked remotely 100% of the time or who worked exclusively outdoors.  The Court highlighted other aspects of the emergency standard, including employers must verify the vaccine status of all employees and maintain proof of their status, there was no exception for unvaccinated workers who undergo weekly testing and wear masks, and unvaccinated workers who refused to comply with the testing and mask mandate had to be “removed from the workplace.”  

     Against this backdrop, the Court concluded that the applicants (who were seeking the stay) were likely to prevail on the merits of their claim.  The Court found that the standard promulgated by OSHA was “a significant encroachment into the lives – and health – of a vast number of employees.”  But the Court further found that the Act did not authorize OSHA’s exercise of regulatory authority in this instance, largely because OSHA’s emergency standard was more a matter of public health, “which falls outside of OSHA’s sphere of expertise.”  The Court rejected OSHA’s argument that the risk in the workplace posed by COVID-19 justified the emergency standard, concluding that the risk of COVID-19 “is not an occupational hazard in most” workplaces. (emphasis added by the Court).  The Court noted that COVID-19 spreads “at home, in schools, during sporting events, and everywhere else that people gather” and “[t]hat 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.”  The Court proceeded to conclude that “[p]ermitting 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.”

     Although the Court concluded OSHA extended beyond its authority with its COVID-19 emergency standard, it noted that its ruling was not intended to and does not preclude OSHA from regulating specific risks in the workplace that may result from COVID-19.  As two examples, the Court noted that OSHA could potentially regulate risks posed to researchers who work on COVID-19 or workplaces where employees work in crowded or cramped environments.

     The Supreme Court’s decision in National Federation of Independent Business is significant because it means that businesses with 100 or more employees are not required to implement policies that require employees to get vaccinated against COVID-19 or, if they do not get vaccinated, they must be tested weekly and wear masks in the workplace.  Although such a policy is no longer required by the federal government, that does not mean businesses may not implement such policies on their own.