The U.S. Supreme Court Stays Enforcement of OSHA’s Nationwide Vaccine Mandate Because It Exceeds OSHA’s Authority

by Ryan E. Abernethy
The Labor & Employment Law Blog

As Lizbeth West and James Kachmar wrote in previous blogs, here and here, the 6th Circuit Court of Appeals vacated the stay of OSHA’s vaccine-or-test mandate that applies to employers with more than 100 employees. Challengers of the mandate sought immediate review by the U.S. Supreme Court. The U.S. Supreme Court held oral arguments in the matter on an expedited basis on January 7, 2022, and just published an opinion today lambasting OSHA’s vaccine mandate and staying its enforcement.

By a 6-3 majority in a per curiam opinion, the majority held that OSHA’s vaccine mandate constituted an administrative overreach. In promulgating the Occupational Safety and Health Act in 1970 (the Act), the majority noted the intended purpose of OSHA was to ensure safe and healthful working conditions by setting standards that must be “reasonably necessary or appropriate to provide safe or healthful employment.” (The majority put an emphasis on “employment.”)

By indiscriminately ordering over 84 million Americans to either get vaccinated or get weekly testing at their own expense, the majority held that OSHA wielded a “blunt instrument” which exceeded the powers of the Act. Specifically, the mandate “draws no distinctions based on industry or risk of exposure to COVID–19. Thus, most lifeguards and linemen face the same regulations as do medics and meatpackers.” The majority detailed how the mandate constituted a significant encroachment into the lives and health of a vast number of employees on an issue that is not necessarily an “occupational hazard,” but rather a universal hazard of daily life. Permitting OSHA to regulate such hazards simply because most Americans have jobs and face those same risks while working, the majority held, would significantly expand OSHA’s regulatory authority without clear congressional authority.

In finding a lack of congressional support for OSHA’s vaccine mandate, the majority noted how the American Rescue Plan Act of 2021, signed into law on March 11, 2021, said nothing about OSHA’s vaccine mandate which was not announced until six months later. And how the Senate specifically disapproved of a vaccine mandate on December 8, 2021.

Going forward, the Court did not entirely foreclose OSHA’s ability to render virus-related regulation in the workplace. Where a virus poses a special danger because of the particular features of an employee’s job or workplace—such as crowded or cramped workplace environments—the majority indicated that targeted regulations could be permissible.

In response to OSHA’s plea that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations, the majority punted to Congress, stating that it was not the Court’s role to weigh such tradeoffs.

Justices Gorsuch, Thomas, and Alito issued a concurring opinion, and Justices Breyer, Sotomayer and Kagan dissented.