What Supreme Court justices said in blocking OSHA’s COVID-19 workplace rule


The Supreme Court yesterday blocked the Biden administration from implementing an order requiring companies with more than 100 employees to require COVID-19 vaccines or tests and masks for their employees.

In National Federation of Independent Businesses v. Occupational Safety and Health Administration, a six-judge majority granted a stay of the COVID-19 order, finding the order, known as the Emergency Temporary Standard, exceeds statutory authority of OSHA because it targets a public health hazard and not a hazard limited to workplaces. Nothing in the Occupational Safety and Health Act of 1970 deals with general public health, which is outside OSHA’s sphere of expertise, they agreed.

Three dissenting justices concluded instead that the Biden administration’s emergency rule is consistent with OSHA’s authority and precedent, while arguing that the order is not a vaccine mandate because it allows the possibility of tests and masks.

In a separate ruling, the court upheld a vaccine requirement for healthcare workers who are employed at medical facilities that participate in Medicare and Medicaid. The government also required that all federal workers be vaccinated.

OSHA had said its emergency temporary standard would protect more than 84 million workers from the spread of the coronavirus at work.

Yesterday’s ruling leaves it largely up to Congress, businesses and states to decide what, if anything, to do, though the court left the door open for OSHA to issue stricter requirements for places specific work.

President Joe Biden expressed his disappointment with the decision and called on businesses and states to act.

In prepared remarks, Biden said, “The court has ruled that my administration cannot use the power granted to it by Congress to demand this action, but that does not preclude me from using my voice as as president to advocate for employers to do the right thing. to protect the health and economy of Americans.

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Majority decision

The majority opinion was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

The majority’s central objection was that the rule went beyond the authority that Congress gave to the Occupational Safety and Health Administration that issued the rule:

“While COVID-19 is a risk that occurs in many workplaces, it is not a professional danger in most. COVID-19 can and does spread at home, in schools, at sporting events, and anywhere else people gather. This type of universal risk is no different from the everyday dangers that everyone faces due to crime, air pollution or any number of communicable diseases. Allowing OSHA to regulate the hazards of everyday life, simply because most Americans have jobs and face the same risks while working, would dramatically expand OSHA’s regulatory authority without clear authorization from Congress. .

“OSHA’s blind approach ignores this crucial distinction – between occupational risk and more general risk – and therefore the mandate takes on the character of a general public health measure, rather than a ‘professional safety or health standard.

However, the court added, OSHA does not lack the authority to regulate occupation-specific risks related to COVID-19. Thus, OSHA could act if there is “a particular danger due to the particular characteristics of an employee’s job or workplace” with targeted regulations. The notice cites as examples regulating researchers who work with the COVID-19 virus and people working in particularly crowded or cramped environments.

“But the danger present in these workplaces differs both in degree and in kind from the daily risk of contracting COVID-19 that all face,” the court said. “OSHA’s blind approach ignores this crucial distinction – between occupational risk and more general risk – and therefore the mandate takes on the character of a general public health measure, rather than a ‘professional safety or health standard.

The six justices reiterated their view that Congress has not given this agency authority to regulate public health more broadly. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls into the latter category,” they concluded.

Closing a concurring opinion in which he was joined by Justices Thomas and Alito, Justice Gorsuch acknowledged that the decision comes at a time of stress:

“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 belongs to the states and Congress, not to OSHA. In saying this, we are not challenging the intentions underlying the agency’s mandate. Instead, we are only carrying out our duty to enforce the requirements of the law when it comes to the question of who can govern the lives of 84 million Americans. Meeting these requirements can be taxing in times of stress. But if this Court were to respect them only under more tranquil conditions, the declarations of emergency would never cease and the freedoms which the separation of powers of our Constitution seeks to preserve would be of little account.

Dissenting view

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented, saying the rule falls under OSHA’s authority and that OSHA did what Congress told it to do in the 1970 statutes and in COVID-19 legislation more recently: it has taken action to combat the COVID-19 threat in workspaces.

Citing the 1970 law, they argued that the virus that causes COVID-19 is a ‘new danger’ as well as a ‘physically harmful’ ‘agent’ and that the virus also poses a ‘grave danger’ to millions. of employees. Additionally, as required by law, the standard is “necessary” to address the danger of COVID-19 and is based on a slew of studies and government reports showing why these vaccine, test and mask measures are “of unprecedented utility in limiting the threat of COVID-19 in most workplaces,” they wrote.

They argued that by suspending the rule, the court is acting “outside of its jurisdiction and without a legal basis, displacing the judgments of government officials tasked with responding to health emergencies in the workplace.”

Nothing in the text of the OSHA statute supports the majority’s limitation on OSHA’s regulatory authority, the dissenters argue, adding that the statute is “indifferent to whether a workplace hazard arises.” also found elsewhere. ”

They argued that OSHA has long regulated hazards that arise both inside and outside the workplace, and argued that COVID-19 is spreading more widely in workplaces than other income “because more people spend more time there together”. Most importantly, employees typically have little or no control over these settings. »

The dissent says “virtually every workforce and workplace” has been transformed by COVID-19, with employers and employees responding to transmission risks in work environments. “It is perverse, given these circumstances, to interpret the granting of emergency powers by statute as the majority do – as preventing OSHA from dealing with one of the most serious workplace hazards. work of the agency’s history,” they insisted. “He’s at the heart of OSHA’s authority. This is part of the agency’s raison d’être. “

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