Supreme Court strikes down federal vaccine mandate for large employers

This is one of the rare administrative law cases that makes the front page and affects everybody. The Supreme Court has ruled that OSHA exceeded its authority in requiring about 84 million workers to get the COVID vaccine (or take a weekly medical test and wear a mask).

The case is National Federation of Independent Business v. Department of Labor, issued on January 13, only one week after oral argument. The Occupational Safety and Health Administration issued this mandate in November 2021. OSHA has authority to issue rules governing workplace safety, but the OSHA statute cabins that authority as follows: the agency is mandated to "deal[] with occupational  safety and health problems,” and it is empowered to issue “mandatory occupational safety and health standards applicable to businesses.” OSHA can also issue “an emergency temporary standard to take immediate effect . . . if [the agency] determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”

The 6-3 majority (all appointed by Republican presidents) rules that the vaccine mandate for businesses employing more than 100 persons exceeds OSHA's authority because "this is no 'everyday exercise of federal power.'" Rather it is "a significant encroachment into the lives -- and health -- of a vast number of employees." So the Court starts off with a "big picture" approach: a huge mandate like this needs clear statutory authority which the agency does not have. While the OSHA law empowers the agency to set workplace safety standards that affect people at work, such as internal safety rules, this is a broad public health measure. While COVID is a risk that occurs in many workplaces, the Court holds, it spreads elsewhere: at home, during sporting events and wherever else people gather. "That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases." The Court adds, "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 regulatory authority without clear congressional authorization."

There are many ways to interpret a federal statute, which is why most cases reach the Supreme Court in the first place: lower court judges see things differently. The same holds true for Supreme Court justices. The three dissenters (all appointed by Democratic presidents) parse the OSHA statute, concluding that COVID is in fact a "new hazard" and a "physically harmful" agent that poses a "grave danger" to millions of employees who can catch the virus at work. Justice Kagan provides the latest death statistics on this point. So, while the mandate affects people outside the workplace, as the vaccine also affects you after you punch out for the day, it remains a workplace safety rule, Kagan writes, the product of OSHA research showing that close contact among workers can spread the virus. She sums up: "the [majority] argues that OSHA cannot keep workplaces safe from COVID–19 because  the  agency  (as it readily acknowledges) has no power to address the disease outside the work setting.
But nothing in the Act’s text supports the majority’s limitation on OSHA’s regulatory authority."

In a related case, a 5-4 Court majority did uphold the vaccine mandate for employees working in federally-funded health facilities. That case also came down on January 13. It involves a different set of statutes, having nothing to do with OSHA. In this case, Biden v. Missouri, the Court analyzed the Medicare/Medicaid statute, which provides federal money to health facilities provided they comply with certain requirements. In this instant, staff must be vaccinated (unless they have a medical or religious exemption). The Secretary of Health and Human Services can impose a mandate like this if it finds the mandate is "necessary in the interest of the health and safety of the individuals who are furnished services." The three Democratic appointees voted with the majority, which includes Chief Justice Roberts and Justice Kavanaugh. Justices Thomas, Gorsuch, Alito and Barrett dissent.