Supreme Court Stays OSHA Vaccination Mandate

By Charles P. Keller, Mark O. Morris, Dawn L. Davis, Sunny J. Thompson, and Walker F. Crowson

In a 6-3 decision issued very soon after the January 7, 2022 oral argument last Friday, the U.S. Supreme Court today reversed the U.S. Court of Appeals for the Sixth Circuit, and reinstated the stay of enforcement against Fed-OSHA’s Emergency Temporary Standard (“ETS”).  The Court noted that the Petitioners challenging the ETS were likely to succeed on the merits.  The unsigned decision was joined in a concurring decision by Justices Gorsuch, Thomas, and Alito.  The Court’s liberal justices, Breyer, Kagan, and Sotomayor, issued a dissenting opinion.

The immediate ramification of this decision is Fed-OSHA will have to suspend its Emergency Temporary Standard (“ETS”) compliance efforts.  Additionally, state plan states will also be stayed from implementing and enforcing the Fed-OSHA ETS.  Should Fed-OSHA wish to pursue this matter, the case will now go back to the lower courts for litigation on the merits of the ETS.

In all three opinions, the justices agreed that the central issue in this case is: What entity in government has the power and authority to decide how to confront the COVID-19 virus in American workplaces?  According to the unsigned majority opinion: “Administrative agencies [like OSHA] are creatures of statute.”  The majority, therefore, stated about the legislation empowering OSHA:

"The question, then, is whether the Act plainly authorizes the Secretary’s mandate.  It does not.  The Act empowers the Secretary to set workplace safety standards, not broad public health measures.”

The Court continued by stating that, “OSHA is charged with regulating ‘occupational’ hazards and the safety and health of employees.”  Troubled by the vaccination mandate, the Court stated, “a vaccination, after all, cannot be undone at the end of the workday.” However, the Court did leave the door slightly ajar for OSHA.  The Court stated that, “where the virus poses a special danger because of a particular feature of an employee’s job or workplace, targeted regulations are plainly permissible.”

The three concurring justices found the only issue to be a question of “whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people.” 

In addressing that question, the majority justices found the broad, expansive ETS to be in violation of two well-established court doctrines.  First, the Court referenced the nondelegation doctrine, which “ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.”  In conjunction with the nondelegation doctrine, the Court cited the major questions doctrine.  This doctrine serves a function similar to the nondelegation doctrine by “guarding against unintentional, oblique, or otherwise unlikely delegations of legislative power.”  According to the Court, both of these doctrines serve to prevent “government by bureaucracy supplanting government by the people.”  The three concurring justices concluded that OSHA could not substantiate its authority to implement and enforce a nationwide vaccination mandate without any clear Congressional mandate.  As a result of that failure to delineate the grant of legislative authority, the concurring justices found that the OSHA ETS would likely constitute an unconstitutional delegation of legislative authority.

The dissenting opinion held that COVID-19 is a hazard which poses a “grave danger” to millions of employees, therefore, in direct contrast to the majority decision, these justices believe that the OSHA ETS is “necessary to address such workplace dangers.”  Thus, the dissenting justices held that OSHA’s implementation and enforcement of the ETS is consistent with the statutory demand levied by Congress when the Act was established in 1970.  The dissent found nothing in the Act itself to support the majority’s limitation of OSHA’s regulatory authority.