When the Occupational Safety and Health Administration (OSHA) announced a new emergency temporary standard (ETS) requiring private employers with 100 or more employees to require their employees to obtain a Covid-19 vaccine or submit to masking and frequent testing, Dhillon Law Group filed the first legal challenge to the ETS on behalf of our client, The Daily Wire. After an intense flurry of appellate litigation, the Supreme Court ruled that those challenging the ETS were likely to succeed, and stayed the implementation of the ETS. Following the Court’s decision, OSHA withdrew the ETS.
On September 9, 2021, President Biden announced a “new plan to require more Americans to be vaccinated.” Nearly two months later, OSHA, an agency that historically regulated workplaces by mandating such things as hard hats and eyewash stations, decreed that large employers must either require vaccinations or allow employees to choose between vaccination or masking and frequent testing. 84 million Americans suddenly found their medical decisions subject to OSHA’s control.
The Daily Wire filed the first petition of its kind, for review of the ETS, in the Sixth Circuit. Shortly thereafter, a diverse group of states, businesses, trade groups, and nonprofits filed companion challenges in various federal courts of appeal. The Fifth Circuit promptly issued an order imposing a nationwide stay of the ETS (which had been scheduled to begin on January 10, 2022). Each of the challenges were then consolidated before the Sixth Circuit, where The Daily Wire’s initial challenge was pending. In a 2-1 decision, a Sixth Circuit panel lifted the stay the Fifth Circuit had imposed, finding that the ETS would likely survive legal challenge.
On January 13, 2022, the Supreme Court ruled in a 6-3 per curiam opinion that OSHA likely exceeded its statutory authority, and that the ETS should therefore be stayed. As a federal agency created by Congress, OSHA has the authority that Congress vested in it—and no more. The Court examined the Occupational Safety and Health Act (OSH Act), the law granting OSHA the authority to issue an ETS, and concluded that the OSH Act did not give OSHA the authority to enact a vaccine mandate of the type articulated in the ETS.
The Court relied on the “major questions doctrine,” under which the Court “expect[s] Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” The Court explained that the OSH Act did not plainly authorize a vaccine mandate (and indeed, the Senate passed a resolution expressing disapproval of the ETS in December), and did not address public health, a subject outside of OSHA’s sphere of expertise. In defending the ETS, even the government conceded that OSHA’s authority was limited to regulating “work-related dangers.” The Court explained that Covid-19 is not an “occupational hazard,” but rather a “universal risk.”
Thus, “[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.” And unlike other occupational regulations, vaccinations “cannot be undone at the end of the workday.” The Court thus concluded that OSHA lacked the authority under the Constitution and laws of the United States to issue a sweeping vaccine mandate affecting 84 million American workers.
In a concurring opinion, Justice Gorsuch, joined by Justices Thomas and Alito, noted additional legal infirmities in the ETS. Like the majority, Justice Gorsuch relied on the major questions doctrine, stating that Congress did not speak clearly in assigning OSHA decisions of vast economic and political significance such as a vaccine mandate. Justice Gorsuch explained that states, not the federal government, typically issue public health laws like the vaccine mandate, and OSHA is not even the federal agency that deals with public health. Justice Gorsuch emphasized that the major questions doctrine “ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives” and is a “vital check on expansive and aggressive assertions of executive authority.” Justice Gorsuch went further than the majority, positing that Congress could not grant OSHA the power OSHA asserted it possessed without violating the nondelegation doctrine, which prevents Congress from delegating its legislative powers to unelected officials without clear standards.
In a joint dissent, Justices Breyer, Sotomayor, and Kagan opined that the OSH Act authorized regulation to protect employees from all hazards in the workplace, and that Covid-19 was one such hazard. The three liberal justices accused the majority of “usurp[ing] a decision that rightfully belongs to others” and “undercut[ting] the capacity of the responsible federal officials . . . to protect American workers from grave danger.”
Two weeks later, OSHA withdrew the ETS, likely recognizing that the Supreme Court would sustain the various petitioners’ challenges to the ETS if it were to hear the case on the merits. However, it appears from OSHA’s recent court filings that OSHA still hopes to impose a vaccine mandate similar to the ETS. Under the OSH Act, the implementation of an ETS starts a parallel process for a final rule using the ETS as a proposed rule. Unless OSHA changes course, OSHA will likely hold an administrative hearing and issue a rule containing a vaccine mandate of some kind by May 2022, as the OSH Act sets forth a six-month deadline to issue a final rule following the issuance of an ETS.
As a result of the High Court’s ruling, large employers are no longer required to force their employees to choose between vaccination or testing and masking. States, local governments, and private employers can still choose to require vaccinations. The Supreme Court’s ruling was not a prohibition on vaccine mandates; instead, the Court held that OSHA lacked authority to implement such a mandate through an ETS. If OSHA does issue a further vaccine mandate as a result of its ordinary rulemaking process, Dhillon Law Group will be ready to protect the Constitutional principles of federalism and separation of powers. If you are seeking counsel regarding your organization’s vaccine policy, Dhillon Law Group is ready to help.
Jesse Franklin-Murdock is an associate in Dhillon Law Group’s San Francisco office where he practices in the areas of employment, defamation, and politics and election law.
References: National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, Case Nos. 21A244 & 21A247, slip op. (U.S. Jan. 13, 2022), https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf.