On January 13, 2022, the United States Supreme Court issued its opinion on the application for stay filed in National Federal of Independent Business v. Department of Labor. In that opinion, a six-member majority of the Court ruled that the Occupational Safety and Health Administration (OSHA) had exceeded its authority in issuing an emergency technical standard requiring the vaccination of employees of larger employers.
In making its ruling the Court relied heavily upon the “major questions doctrine” under which the Court expects Congress to make express grants of authority to administrative agencies acting on matters of “vast economic and political significance.” Here, OSHA’s COVID-19 ETS would have impacted 84 million Americans, the Court held, and yet there was no clear assignment of such sweeping authority to the agency to do so. Furthermore, the ETS was not clearly targeted at occupational hazards that would be within OSHA’s purview and expertise, but instead took aim at a hazard that exists “at home, in schools, during sporting events, and everywhere else that people gather.” Allowing OSHA to regulate such a universal hazard, according to the Court, would grant a significant expansion to OSHA’s regulatory authority without clear congressional authorization.
While this is technically an interim order, enforceable only until a final decision on the merits of the underlying claims is rendered, in any practical sense, the Court’s opinion closes the book on enforcement of the OSHA ETS. Employers in most states may still impose their own vaccination mandates, require testing, or voluntarily adopt aspects of the OSHA ETS that find to be advisable, but they no longer risk OSHA penalties for failing to comply with the letter of the rule.