Nat’l Fedn. of Indep. Bus. v. Dep’t of Labor

On January 13, 2022, the Supreme Court of the United States rendered a decision in the case National Federation of Independent Businesses v. Department of Labor.

By way of background:

The Secretary of Labor, acting through the Occupational Safety and Health Administration, recently enacted a vaccine mandate for much of the Nation’s work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. It requires that covered workers receive a COVID-19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday.

See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *1 (Jan. 13, 2022.)

“Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country.” See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *1 (Jan. 13, 2022.) “The Fifth Circuit initially entered a stay”, “[b]ut when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect.” See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *1 (Jan. 13, 2022.)

Thus, Applicants “[sought] emergency relief from [the Supreme Court of the United States], arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful.” See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *1-2 (Jan. 13, 2022.)

In its Opinion, the Supreme Court found that “Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.” See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *6 (Jan. 13, 2022.) The Supreme Court indicated as follows:

Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.” In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees.

See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *6-7 (Jan. 13, 2022.)

The Supreme Court stated that:

“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___, 141 S. Ct. 2485, 210 L. Ed. 2d 856, 860 (2021) (per curiam) (internal quotation marks omitted). There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.

See Nat’l Fed’n of Indep. Bus. v. DOL , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *7 (Jan. 13, 2022.)

The Supreme Court then posed the question as to “whether the Act plainly authorizes the Secretary’s mandate”, but found that “[i]t does not.” See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *7 (Jan. 13, 2022.) Rather,

The [Occupational Safety and Health Act, 29 U.S.C.S. § 651 et seq.,] empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace). Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. See, e.g., §§651, 653, 657. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.

See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *7-8 (Jan. 13, 2022.)

The Supreme Court stated that “[i]t is the text of the agency’s Organic Act that repeatedly makes clear that OSHA is charged with regulating “occupational” hazards and the safety and health of “employees.”” See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *8 (Jan. 13, 2022)(citing 29 U. S. C. §§652(8), 654(a)(2), 655(b)-(c).)

Moreover, the Supreme Court determined that:

Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that 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. 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.

See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *8-9 (Jan. 13, 2022.)

The Supreme Court further indicated that “a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed” and “imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not “part of what the agency was built for.”” See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *9 (Jan. 13, 2022)(citing Post, at 10.)

The Supreme Court stated that “OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”” See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *10 (Jan. 13, 2022)(citing 29 U. S. C. §655(b) (emphasis added).)

The Supreme Court indicated that “[i]t is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace”, and “[t]his “lack of historical precedent,” coupled with the breadth of authority that the Secretary now claims, is a “telling indication” that the mandate extends beyond the agency’s legitimate reach.” See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *10-11 (Jan. 13, 2022)(citing Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505 (2010) (internal quotation marks omitted).)

The Supreme Court went on to indicate that “[t]he equities do not justify withholding interim relief.” See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *11 (Jan. 13, 2022.)

Ultimately, the Supreme Court concluded that:

Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power 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 in the latter category.

See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *11 (Jan. 13, 2022.)

As such, “[t]he applications for stays presented to Justice Kavanaugh and by him referred to the Court [were] granted.” See Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor , Nos. 21A244, 21A247, 2022 U.S. LEXIS 496, at *11 (Jan. 13, 2022.)

Justice Gorsuch concurred, joined by Justices Thomas and Alito.

Justices Breyer, Sotomayor, and Kagan dissented.