COVID-19 News, TOP STORY—U.S.: OSHA large employer COVID vaccine mandate stayed, (Jan 13, 2022)

By Kathleen Kapusta, J.D.

Ordering 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense, is a “significant encroachment into the lives—and health—of a vast number of employees.”

Finding that the states, businesses, and nonprofit organizations that challenged ...

By Kathleen Kapusta, J.D.

Ordering 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense, is a “significant encroachment into the lives—and health—of a vast number of employees.”

Finding that the states, businesses, and nonprofit organizations that challenged OSHA’s COVID-19 private employer mandate are likely to prevail on their claim the mandate exceeds OSHA’s statutory authority and is otherwise unlawful, the U.S. Supreme Court, in a per curiam decision, granted their application for a stay. While COVID-19 is a risk that occurs in many workplaces, the Court noted that it is not an occupational hazard but rather spreads in homes and schools and everywhere else that people gather. “Permitting 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 statutory authority without clear congressional authorization.” Justices Gorsuch, Thomas, and Alito filed a concurring opinion while Justices Breyer, Sotomayor, and Kagan dissented (National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, January 13, 2022, per curiam).

Fifth Circuit issues stay. Issued on November 5, OSHA’s Emergency Temporary Standard requires employers of 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy, or to instead adopt a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering in lieu of vaccination. One day after the ETS was issued, the Fifth Circuit, in a brief order, stayed the mandate pending judicial review.

Sixth Circuit lifts it. Many states, businesses, and nonprofit organizations had challenged the rule in the courts of appeals across the country. Those cases were consolidated before the Sixth Circuit, which lifted the stay and allowed OSHA’s rule to take effect. The applicants, arguing that OSHA exceeded its statutory authority, then sought emergency relief from the High Court, which found they were likely to prevail and granted the stay.

In so ruling the Court noted that while OSHA is tasked with ensuring occupational safety, and does so by enforcing safety and health standards promulgated by the Secretary of Labor, the standards must be “reasonably necessary or appropriate to provide safe or healthful employment.” And while it may issue emergency temporary standards in the narrowest of circumstances, the Court pointed out that prior to the emergence of COVID-19, the Secretary used this power just nine times before and never for a rule as broad as this one. Further, of those nine emergency rules, six were challenged in court, and only one was upheld in full.

No distinction. Turning to the ETS at issue here, which applies to all who work for employers with 100 or more employees, the Court noted that it “draws no distinction based on industry or risk of exposure to COVID-19.” While the rule, which requires employers to “develop, implement, and enforce a mandatory COVID-19 vaccination policy,” contains an exception allowing unvaccinated workers to “undergo [weekly] COVID-19 testing and wear a face covering at work in lieu of vaccination,” employers are not required to offer this option. Further, said the Court, employers that commit violations face hefty fines.

Significant encroachment. Explaining that administrative agencies are creatures of statute and possess only the authority Congress provides, the Court found this was “no ‘everyday exercise of federal power.’” Rather, ordering 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense, is a “significant encroachment into the lives—and health—of a vast number of employees.”

Finding that the OSH Act does not plainly authorize the Secretary’s mandate, the Court explained that the Act empowers the Secretary to set workplace safety standards, not broad public health measures. Disagreeing with the contention that the risk of contracting COVID-19 qualifies as a work-related danger, the Court noted that COVID spreads everywhere people gather and permitting OSHA to regulate the hazards of daily life simply because Americans face risks at work would significantly expand its regulatory authority without clear congressional authorization.

Further, said the Court, the vaccine mandate is unlike OSHA’s typical workplace regulations and “imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for.’” The Court observed, however, that OSHA could potentially regulate occupation-specific risks related to COVID-19, where the virus poses a particular danger due to the special features of the job or workplace.

Granting the application for stays presented to Justice Kavanaugh, the Court stayed the ETS pending disposition of the applicants’ petitions for review in the Sixth Circuit.

Concurrence. Justice Gorsuch, in a concurring opinion in which Justices Thomas and Alito joined, wrote that “The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA.”

Dissent. Dissenting, Justices Breyer, Sotomayor, and Kagan pointed out that COVID-19, which has killed almost one million Americans and hospitalized almost four million, causes harm in nearly all workplace environments, environments over which individuals have little control. Accordingly, OSHA “did what Congress commanded it to: It took action to address COVID-19’s continuing threat in those spaces.” In issuing the stay, the dissent argued, the Court “stymies the Federal Government’s ability to counter the unparalleled threat that COVID-19 poses to our Nation’s workers. Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.”

The case is Nos. 21A244 and 21A247.

Attorneys: Steven Paul Lehotsky (Lehotsky Keller) for National Federation of Independent Business. Benjamin Michael Flowers, Ohio Attorney General's Office, for Ohio.

Companies: National Federation of Independent Business

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