Creative Representation | Expert Litigation

Impacts and Analysis of NFIB v. Department of Labor, Occupational Safety and Health Administration

by Elizabeth T. Ferguson, Chad E. DeVeaux, Kritika Thukral

This article is a collaboration between Bartko’s L&E Department and our Constitutional Law Scholar.

Today, on January 13, 2022, the U.S. Supreme Court issued a stay on the enforcement of OSHA’s Emergency Temporary Standards (“ETS”), which required employers with 100 or more employees to ensure each worker is fully vaccinated or tests for COVID-19 on at least a weekly basis.  The majority opinion held that OSHA “likely exceeded [its] statutory authority” to effectuate this rule, especially since it was done through the rarely invoked emergency rulemaking process.  As explained by the Court, the Secretary of Labor is empowered to act by its statutory powers conferred by Congress to set workplace safety standards.  In the Court’s view, COVID-19 is not an “occupational hazard,” within the meaning of the statute, as it also spreads in homes, schools, and other gatherings. OSHA does not have the authority to enact broad public health measures to regulate the “hazards of daily life.”

Importantly, the Court did not hold that employers are prohibited from creating their own vaccine mandate.  Nor did the Court find that a vaccine mandate violates any individual liberty interest protected by the Constitution.  Rather, the majority’s decision is an example of what Justice Kagan (who dissented in today’s opinion) once called “the Schoolhouse Rock definition” of the lawmaking–i.e., a federal agency’s orders are only valid if they are authorized by statutes enacted through the Constitution’s lawmaking process.  (See, e.g., the constitutionally permissible vaccine mandate enacted under state law discussed in the Court’s 1905 decision in Jacobson v. Massachusetts.)  Moreover, today’s opinion does not prevent California’s legislature from enacting a law specifically imposing an employee vaccination mandate, or authorizing Cal-OSHA to implement such a mandate.  While Cal-OSHA has yet to impose its own independent vaccine mandate rule as part of its COVID-19 Emergency Temporary Standards, the validity of such a mandate would turn on whether it was authorized by the California state laws from which Cal-OSHA derives its powers.  We expect to hear more from Cal-OSHA after the Board meets later this month on January 20, 2022.

The Department of Fair Employment and Housing has opined that an employer may require employees to receive an FDA-approved COVID-19 vaccine so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic and provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices.  The U.S. Equal Employment Opportunity Commission likewise has stated that federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the Americans with Disabilities Act.

We will continue to monitor the effects of this decision and provide updates after Cal-OSHA’s Board meeting on January 20, 2022.