Supreme Court Puts a Pause on the Occupational Safety and Health Administration’s Vaccine Mandate

January 19, 2022 | Category: BPE Newsletter, Employment law, Vaccine Mandate

Supreme Court Puts a Pause on the Occupational Safety and Health Administration’s Vaccine Mandate

By: Alexander J. Hinman, Esq.

January 19, 2022

The Secretary of Labor, acting through the Occupational Safety and Health Administration (OSHA) enacted a vaccine mandate for much of the Nation’s work force on November 5, 2021. The mandate applied to roughly 84 million workers, thereby covering virtually all employers with at least 100 employees. It required that covered workers receive a COVID-19 vaccine, with the only exception being for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask at work.

The Supreme Court ruled via 6-3 decision, on January 13, 2022, that the vaccine mandate implemented by OSHA exceeds its statutory authority, agreeing with the applicants that they are likely to prevail on the merits. Put simply, the more than 60 petitioners, many of whom are business owners, are likely to prevail in demonstrating that the mandate is a violation of the separation of powers, a violation of the Enabling Act of the original body itself, OSHA, and it was being used by the executive branch of the government to get around working with the legislature.

Congress enacted the Occupational Safety and Health Act (the “Act”) in 1970, which created (OSHA), a part of the Department of Labor and under the supervision of its Secretary. OSHA is tasked with ensuring “safe and healthful working conditions.” (29 U.S.C. § 651(b).) OSHA seeks to achieve these ends through enforcing occupational safety and health standards promulgated by the Secretary, and these standards must be “reasonably necessary or appropriate to provide safe or healthful employment.” (§ 655(b); § 652(8).) Similar to other government agency mandates, new proposed OSHA standards must allow for a notice and comment period, as well as an opportunity for a public hearing. (§ 655(b).)

Of particular relevance here, the Act contains an exception to those ordinary notice-and-comment procedures for “emergency temporary standards.” (§ 655(c)(1).) Such standards may “take immediate effect upon publication in the Federal Register. (Ibid.) Thus, pushing through a standard without the typical notice-and-comment period is permissible; however, it must meet a series of narrow circumstances to pass constitutional muster. As laid out in the ruling, the Secretary 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) that the “emergency standard is necessary to protect employees from such danger.” (Ibid.) As addressed in a previous blog which discussed new surcharges for non-vaccinated public employees, prior to the emergence of COVID-19, the Secretary had used this power just nine times before, and of those nine emergency rules, six were challenged in court and only one of those was upheld in full. (See https://www.bpelaw.com/nevadas-non-vax-tax/ ) (See also BST Holdings, L.L.C. v. Occupational Safety and Health Admin., (2021) 17 F. 4th 604, 609.)

As the Court stated, “[t]he Secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power’.” Further, the Court noted that this is a significant encroachment into the lives and health of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” (Alabama Assn. of Realtors v. Department of Health and Human Servs. (2021) 594 U.S. ___, ___ (per curiam) (slip op., at 6).)

The Court then turned its analysis to determine whether the Act plainly authorizes the Secretary’s mandate, holding it does not. The Court reasoned that the Act empowers the Secretary to set workplace safety standards as put forth in 29 U.S.C. §655(b), but it does not provide the Secretary with the authority to set broad public health measures. Despite the dissent arguing to the contrary, the majority leaned on the fact that throughout the language or the Act, it is repeatedly made clear that OSHA is charged with regulation of occupational hazards and the safety and health of employees. The Solicitor General did not dispute this fact and agrees that OSHA is charged with regulating “work-related dangers.” However, the Solicitor General argued that the risk of contracting COVID-19 qualifies as a “work related danger.”
The Court did not agree, stating “[a]lthough COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.” In light of COVID-19 being a universal risk for all, the Court identified that it is a risk that is no different from the day-to-day dangers that all face, citing examples such as crime, air pollution, or any number of communicable diseases. With that as a baseline, the majority held 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.”

The dissent contended that OSHA’s mandate is comparable to a fire or sanitation regulation imposed by the agency; however, the majority rejected this analogy because “[a] vaccination, after all, ‘cannot be undone at the end of the workday’.” (Citing In re MCP No. 165, 20 F. 4th, at 274.) The majority concedes; however, that while imposing a vaccine mandate on 84 million American in response to a worldwide pandemic is simply not “part of what the agency was built for,” OSHA still has the authority to regulate occupation-specific risks related to COVID-19. Thus, when an employee’s job or workplace creates a special danger of contracting and/or spreading the virus, “targeted regulations are plainly permissible.”

Perhaps at the heart of the decision is a lack of distinction in the application of the mandate. For example, the Court points out that OSHA could regulate researchers who work with the COVID-19 virus, or those who work in crowded or cramped areas. The danger presented in such examples of workplaces differ in both degree and kind from the everyday risk of contracting COVID-19 that we all face. However, OSHA instead used an indiscriminate approach which has failed to account for these crucial distinctions between occupational risk and risk more generally. “[A]ccordingly, the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard’.” (29 U.S.C. § 655(b).)

Thus, the applications for stays presented to the Court were granted—meaning that OSHA’s mandate is now inactive until further proceedings. It is also worth mentioning that though the federal requirement is on hold for now, states, cities, and employers can adopt their own vaccine or testing requirements. Additionally, in a separate decision, the Supreme Court upheld a vaccine requirement for medical facilities that take Medicare or Medicaid payments.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.

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