Caseflicks

Supreme Court of the United States • 2022

NFIB v. OSHA

595 U.S. 109

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Takeaway

In short, this case held that OSHA’s broad COVID-19 vaccination-or-testing rule likely exceeded the agency’s workplace-safety authority because Congress had not clearly authorized OSHA to impose a nationwide public-health measure of such economic and political significance.

Background

OSHA issued an emergency temporary standard requiring employers with 100 or more employees to ensure that their workers were vaccinated against COVID-19 or, if the employer allowed it, tested weekly and masked at work. The rule covered about 84 million workers, required employers to collect vaccination information, and preempted contrary state laws. Employees who did not comply with their employer’s chosen policy had to be removed from the workplace.

The Occupational Safety and Health Act allows OSHA to issue an emergency temporary standard when employees face a grave danger from toxic or physically harmful substances, agents, or new hazards and the standard is necessary to protect them. OSHA invoked that authority because of COVID-19’s risks in workplaces.

Challenges were filed throughout the country. Before consolidation, the Fifth Circuit stayed the rule, concluding that OSHA likely exceeded its authority. After the cases were consolidated in the Sixth Circuit, a divided Sixth Circuit panel dissolved that stay. The Supreme Court then granted emergency relief and stayed OSHA’s standard while the litigation proceeded, holding that the challengers were likely to succeed on their claim that OSHA lacked statutory authority.

Issues

Issue #1

Whether OSHA likely had statutory authority under the Occupational Safety and Health Act to impose a vaccination-or-testing requirement on employees of employers with 100 or more workers.

Holding

No. The Court held that the challengers were likely to succeed because the Act did not plainly authorize OSHA to impose this broad vaccination-or-testing rule.

Reasoning

Administrative agencies have only the authority Congress gives them. Because OSHA’s rule required roughly 84 million people either to receive a vaccine or to submit to weekly testing, the Court treated it as an exercise of vast economic and political significance. Under the major questions doctrine, Congress must speak clearly before an agency may exercise authority of that scale.

The Occupational Safety and Health Act authorizes OSHA to set occupational safety and health standards, not to adopt general public-health measures. Its text repeatedly focuses on employees and workplace dangers, and the Court read that language as limiting OSHA to hazards that are occupational in character.

COVID-19 is a serious risk in many workplaces, but the Court reasoned that it is not an occupational hazard in most of them. It spreads at home, school, sporting events, and other places where people gather. Allowing OSHA to regulate such a universal danger merely because people also encounter it at work would greatly expand the agency’s authority without a clear congressional authorization.

The rule’s broad coverage reinforced that conclusion. It applied based principally on employer size, rather than the particular risks associated with a job or workplace, treating workers such as lifeguards and linemen much like medical personnel and meatpackers. That indiscriminate design made the standard look like a general public-health intervention rather than a workplace-safety regulation.

The Court emphasized that OSHA may regulate COVID-19 risks that are especially tied to particular workplaces. For example, OSHA could address dangers faced by researchers working with the virus or workers in unusually crowded or cramped environments. But a nationwide rule directed at the ordinary risk of COVID-19 infection went beyond those occupation-specific risks.

OSHA’s lack of historical precedent also supported the Court’s reading. In its half-century existence, OSHA had never used its emergency power to issue such a broad public-health regulation. Congress had enacted substantial COVID-19 legislation without clearly granting OSHA the authority asserted here, and the Senate had voted to disapprove the regulation.

Issue #2

Whether the equitable requirements for an emergency stay favored blocking the OSHA standard while judicial review continued.

Holding

Yes. The Court concluded that the equities did not justify withholding interim relief and therefore stayed the rule.

Reasoning

States and employers asserted that compliance would cause unrecoverable costs in the billions of dollars and could lead many employees to leave their jobs. The federal government responded that the standard would save lives and prevent hospitalizations. Because the challengers were likely to establish that OSHA lacked authority, the Court concluded that it was not the judiciary’s role to resolve those policy tradeoffs for an unauthorized agency action.

The Court stated that choices about balancing public-health benefits against the costs of a nationwide vaccine-or-testing policy belong to the political branches. Congress had given OSHA authority to regulate occupational dangers, but not broad authority over public health; the scale of the claimed benefits therefore could not supply the statutory authorization that was missing.

Concurrences

Justice Gorsuch

Reasoning

Justice Gorsuch, joined by Justices Thomas and Alito, framed the case as a question of who decides. States possess broad general authority over public health, while the federal government has only enumerated and delegated powers. The relevant question was not whether COVID-19 justified strong measures, but whether Congress had clearly empowered OSHA, a workplace-safety agency, to impose this particular nationwide rule.

He applied the major questions doctrine directly. A rule requiring vaccination or recurring testing for 84 million people resolved a question of vast national importance, yet Congress had not clearly assigned that power to OSHA. Congress had addressed COVID-19 repeatedly without enacting such a delegation, while OSHA relied on a 50-year-old emergency provision historically used for more limited workplace dangers.

Justice Gorsuch stressed that the rule reached beyond conditions during the workday by inducing workers to undergo a medical procedure with continuing effects. In his view, public-health measures of that kind have traditionally been matters for state authority, and Congress has used express language when it has chosen to require vaccination in other contexts.

He linked the major questions doctrine to the nondelegation principle. The doctrine prevents agencies from using ambiguity or broad language to assume major policymaking power that Congress probably did not intend to transfer. If OSHA’s reading were accepted, moreover, the statute might itself raise a nondelegation problem because it would give OSHA nearly unconstrained discretion over major national policy.

For Justice Gorsuch, the separation of powers matters especially during emergencies. Emergency conditions do not permit administrative agencies to exercise power that Congress did not clearly confer; otherwise, claimed emergencies could become a recurring basis for bypassing the Constitution’s democratic lawmaking process.

Dissents

Justice Breyer

Reasoning

Justice Breyer, joined by Justices Sotomayor and Kagan, argued that OSHA’s standard fit squarely within the emergency temporary-standard provision. COVID-19 is both a physically harmful agent and a new hazard; it creates grave danger for employees; and OSHA found, based on extensive evidence, that vaccination or testing and masking were necessary to reduce that danger.

The dissent emphasized that the rule was not an absolute vaccine mandate. Employers could instead require weekly testing and masks, and the standard exempted workers who worked entirely remotely, alone, or exclusively outdoors. It also accommodated medical and religious objections and permitted employers to seek variances when alternative practices provided equivalent safety.

In the dissenters’ view, the statute does not require a workplace hazard to exist only at work. OSHA has long regulated hazards such as fire, unsafe electrical systems, inadequate exits, excessive noise, and unsafe drinking water even though those dangers can arise elsewhere. The relevant question is whether workers face the hazard in the workplace, and COVID-19 does so because employees commonly spend extended periods in shared indoor spaces with people whose infection status they cannot control.

OSHA had substantial evidence for finding workplace-specific danger. The agency cited widespread workplace outbreaks and explained that close, prolonged contact makes transmission likely across many industries. The dissent concluded that the agency reasonably tailored its rule to that evidence by excluding settings where workers faced a lower risk.

The dissent also rejected the majority’s reliance on the major questions doctrine and the absence of an identical historical regulation. Congress deliberately gave OSHA broad emergency authority so it could address unforeseen hazards, including new contagious diseases. The unprecedented scope of the standard reflected the unprecedented scale of the pandemic, not an impermissible assertion of power.

Finally, the dissent concluded that the stay badly misapplied the equitable standard. OSHA estimated that the rule would save more than 6,500 lives and prevent more than 250,000 hospitalizations over six months, while its findings suggested that claimed employment disruptions were overstated. In the dissenters’ view, the public interest in preventing disease and death overwhelmingly favored allowing the standard to take effect.