Home > Blogs > Construction Industry Counselor > U.S. Supreme Court Strikes OSHA's Vaccine Mandate

U.S. Supreme Court Strikes OSHA's Vaccine Mandate

Posted: January 18, 2022

National Fed’n of Indep. Businesses v. Department of Labor, Occupational Safety and Health Admin., Nos. 21A244 and 21A247 (U.S. Jan. 13, 2022)(per curiam),  

In a per curiam opinion issued by Chief Justice Roberts, Justices Barrett and Kavanaugh, with Justices Gorsuch, Thomas and Alito concurring, the Supreme Court stayed OSHA’s “emergency temporary standard” mandating COVID-19 vaccines for employers of 100 or more employees.  The Court noted that the mandate would affect over 84 million workers across the country and that “OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.” 

The Court reiterated that Occupational Safety and Health Act, 29 U.S.C. § 651, et seq., authorizes OSHA to promulgate standards that are “reasonably necessary or appropriate to provide safe or healthful employment.” §652(8) (emphasis in opin.).  OSHA is not authorized to address issues of public health generally—its authority ends at the workplace.”  OSHA’s authority is limited to “workplace-related dangers.”   The Court disagreed with the Solicitor General’s argument that COVID-19 represents a workplace danger, and held that “[a]lthough COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.”  Instead, it represents a “universal risk [that] 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.”  Thus, the Court held 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.”  Justices Bryer, Sotomayor and Kagan dissented.