On Sept. 9, 2021, President Joe Biden announced a “new plan to require more Americans to be vaccinated, to combat those blocking public health.” Two months later on Nov. 5, the Secretary of Labor issued the highly-anticipated emergency temporary standard (ETS) through the Occupational Safety and Health Administration (OSHA). As part of the standard, “covered employees must develop, implement, and enforce a mandatory COVID-19 vaccination policy.” This applies to all large employers, defined in the standard as those with 100 or more employees. OSHA predicts this will impact approximately 84 million Americans. Notably, there is an exception for employers that adopt a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Additionally, there are exemptions based on religious objections or medical necessity.

In response to OSHA publishing the ETS, a number of states, businesses, trade groups, and nonprofit organizations filed petitions for review. However, the 1971 act that founded OSHA gives them the right to issue emergency standards, which, like a president’s executive order, would mean the elimination of a typical revision procedure and opportunity for objection. An ETS may be issued if A) employees are exposed to grave danger, and B) the emergency standard is necessary to protect employees from such danger. OSHA, believing these requirements were met, thus issued this standard on those grounds. Therefore, these petitions would be overlooked if OSHA’s view were nationally recognized as legitimate – but this was not the case.

Determined randomly, the cases were to be consolidated in the Sixth Circuit, a federal court with authority over Kentucky, Michigan, Ohio, and Tennessee. However, prior to consolidation, the Fifth Circuit (Louisiana, Mississippi, and Texas), halted further judicial review on the basis that the mandate likely went beyond OSHA’s scope of authority, and was not appropriately tailored to the diverse risks facing different types of workers and workplaces. In response, the Sixth Circuit denied the 60 petitioners’ request for an initial hearing, and, per the request of OSHA, dissolved the Fifth Circuit’s stay, on the grounds that OSHA’s mandate was likely consistent with the agency’s given authority.

The concerns raised by the Fifth Circuit resurfaced as the foundation of the majority’s argument in the Supreme Court hearings held in the first week of January. OSHA’s mandate was blocked in a six to three vote, with the majority rule made up by conservatives Clarence Tomas, Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, as well as Samuel Alito. Liberal Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

Kavanaugh led the argument against OSHA’s mandate, stating that the regulation “operates as a blunt instrument,” drawing “no distinction based on industry or risk of exposure to COVID-19.” Indeed, while the standard does exempt employees who work remotely “100 percent of the time” or who “work exclusively outdoors,” very few occupations and employees meet these tall requirements. In fact, the Secretary of Labor, Martin J. Walsh, estimates that only nine percent of landscapers and groundskeepers qualify as working exclusively outside. “Thus,” the majority concluded, “most lifeguards and lineman face the same regulations as do medics and meat-packers.”

Another problematic detail, the majority claimed, is that while the Standard does permit employers to adopt a masking-or-testing policy over a vaccination policy, it does not require employers to offer this alternative option. Therefore, depending on the employer’s decision, many employees would still be forced to get vaccinated or face unemployment, regardless of whether they mask up and get tested regularly.

Along with the aforementioned points, the majority’s main focus was OSHA’s purpose and authority. According to the majority, the act that created OSHA empowers the Secretary of Labor to set workplace standards, not broad public health measures. In other words, COVID-19 is not a workplace-specific threat, and OSHA does not have the right to “regulate the hazards of daily life.” In response, the dissent pointed out that the risk of being exposed to COVID-19 is significantly increased in the workplace, and regardless, the Standard is “indifferent to whether a hazard in the workplace is also found elsewhere.” In the past, OSHA has issued rules combating risks of fire, faulty electrical installations, excessive noise, and unsafe drinking waters, all of which occur outside the workplace as well as within it. The dissent asserted that Congress was in agreement with them on this matter.

As an administrative agency, OSHA only possesses the authority that Congress provides. On the subject of OSHA’s authority by Congress, the majority brought up the major questions doctrine, which states the expectation for Congress to “speak clearly” if it wishes to assign vast power to an executive agency. The majority said that Congress has not done that for OSHA – in fact, it has chosen, for the last year that vaccines have been available, not to grant any federal agency the authority to issue a vaccine mandate. “Permitting OSHA to regulate the hazards of daily life,” said the majority, “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.”

The dissent pointed out that the act, passed by Congress, gives OSHA the right to issue emergency standards. The dissent asserted that the requirements for passing an ETS are met, and as a result, Congress has, in fact, authorized OSHA to issue a standard such as this.

However, the majority did not believe this subsection clearly authorized OSHA’s mandate because A) it was not established in response to the pandemic and B) OSHA has only used this subsection to justify comparatively modest rules. The dissent retorted that of course the enacting 1971 Congress did not tell the agency to issue this Standard in response to the COVID-19 pandemic, but they did indeed want OSHA to have the tools needed to confront materializing, unpredictable dangers in the workplace. Moreover, they said, “When Congress ‘enacts expansive language offering no indication whatever that the statute limits what [an agency] can’ do, the Court cannot ‘impose limits on an agency’s discretion that are not supported by the text.’ That is what the majority today does – impose a limit found no place in the governing statute.”

The final issue was in regard to balancing equities. OSHA estimated it will save over 6,500 lives and prevent over 250,000 hospitalizations in the six months that the Standard would be enacted. The dissent added that these estimates may actually be conservative, because at the time of the hearings, the number of daily new COVID-19 cases had risen tenfold, and the number of hospitalizations had quadrupled since OSHA issued the Standard. On the other hand, employers who commit violations of the standard would face hefty fines, and states and employers claim that OSHA’s mandate would force them to lose billions of dollars in compliance costs as well as hundreds of thousands of employees. The majority said that it is not the Supreme Court’s role to weigh such balances. The dissent shot back by referencing the Trump v. International Refugee Assistance Project, which established that “before issuing a stay, it is ultimately necessary to balance the equities – to explore the relative harms and ‘the interests of the public at large.’”

With that, the dissent went on to say that OSHA considered employers’ claim that hundreds of thousands of employees will leave their jobs and found it to be exaggerated. According to OSHA, employers that have implemented vaccine mandates have found that far fewer employees actually quit their jobs than threaten to do so. Additionally, OSHA predicts that many employees would be more likely to stay at or apply to an employer observing the Standard’s safety precautions, and employers would see far fewer workdays lost from workers calling in sick. “More fundamentally,” they said, “the public interest here – the interest in protecting workers from disease and death – overwhelms the employers’ alleged costs.”

The dissent’s argument was not enough to sway the majority on the larger topic of debate; however, the Court did rule in favor of implementing this Standard for health care workers only. Since these hearings, Biden and OSHA have withdrawn the vaccine mandate. Fortunately, COVID-19 cases in the United States have also dropped significantly since their peak in mid-January at approximately 807,000 cases per day, with a current average of less than 50,000 cases per day. Without Biden’s vaccine mandate, approximately 77% of the national population has received at least one dose of the vaccine as of Mar. 5, while only approximately 29% of the national population is fully vaccinated (booster included).