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Supreme Court Strikes Down OSHA COVID-19 Plan - But Leaves Opening for Others

While six justices concurred in ruling against OSHA’s requirement for large companies to ensure compliance to a vaccination-or-weekly-testing scheme, other governmental or employer-driven avenues remain untouched.

Today, in the case National Federation of Independent Business v. Department of Labor, the Supreme Court struck down an OSHA requirement mandating that employees at large companies be vaccinated against COVID-19 or undergo testing on a weekly basis (and at their own expense). According to the opinion of the Court, the OSHA rule, had it stood, would have affected the roughly 84 million people who work at companies with more than 100 employees. Additionally, while the mandate carved out exceptions for employees working entirely on a remote basis or outdoors, the Court held that these exceptions were “largely illusory,” with the Department of Labor (from which OSHA derives its powers) estimating that “only nine percent of landscapers and groundskeepers qualify as working exclusively outside.”

Moreover, the mandate would have placed the burden of verifying and maintaining proof of the vaccination status of employees on the shoulders of their employers, with fines of up to approximately $13,000 for unintentional failures to do so and up to approximately $130,000 for “willful” violations.

The Court ruled that the OSHA mandate exceeded the limits of its statutory authority, on the grounds that a mandatory vaccination program is not specific to workplace health risks, but rather represents a general public health policy. OSHA, on the other hand “is charged with regulating ‘occupational’ hazards and the safety and health of ‘employees.’” Accordingly, “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.”

However, this ruling does not automatically invalidate any and all requirements imposed by the government or by employers. The Court’s opinion held that rules that were more narrowly tailored to specific workplace risks – for instance, specific rules for COVID-19 researchers – could still be upheld, and, as noted by SCOTUSblog, in the case of Biden v. Missouri, the Court left intact “a rule that requires nearly all health care workers at facilities that participate in the Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption.”

This suggests that healthcare workers could still be subject to federal vaccination requirements now and in the future, albeit with certain exceptions. Moreover, employees in other industries may be subject to COVID policies at the state level and may be affected by policies adopted by their employers.

In the grand scheme, the Court’s ruling today simply rules out a broadly-drawn federal requirement implemented by OSHA, specifically. Moreover, employees in other industries will still be subject for the foreseeable future to COVID policies at the state level and any policies voluntarily adopted by their employers. Mandates issued by other federal bodies, by Congress, by the states, and by employers remain largely untested, particularly if they frame the issue more narrowly.

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