OSHA’s Vaccine Mandate on Private Employers

by Camille Wharton


On September 9, 2021, President Biden announced new vaccine requirements for private employers with 100 or more employees in order to further mitigate the spread of COVID-19 and increase vaccination rates among Americans.[1] The requirements mandate for these employees to be fully vaccinated or their employer can choose to offer a weekly-testing-and-mask approach at the employees’ own expense.[2] The penalty for unvaccinated employees who refuse to comply with the vaccine-or-test approach is termination.[3] In addition, the penalty for employers failing to adhere to the new requirements are substantial fines of “up to nearly $14,000 per violation.”[4]

Following the President’s remarks, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) on November 4, 2021, giving the new vaccine requirements the force of law for the stated purpose of protecting workers from coronavirus.[5] The new ETS would affect more than 84 million American workers.[6] Soon after the ETS was promulgated, 26 states, as well as numerous private organizations, religious groups, and national trade associations across the country, brought suits seeking injunctive relief and challenging the constitutionality of the mandate as well as its scope.[7]

The United States Fifth Circuit Court of Appeals originally entered a stay because the court found that the petitioners’ challenge to the ETS was likely to succeed on the merits; however, the Sixth Circuit later dissolved the stay after the cases were consolidated, thus allowing the vaccine-or-test mandate to again take effect.[8] The plaintiffs then sought emergency relief with the United States Supreme Court to prevent the ETS’s enforcement, asserting that “OSHA’s mandate exceeds its statutory authority and is otherwise unlawful.”[9]

On January 7, 2022, the United States Supreme Court consolidated two of the applications for emergency relief, specifically one from the National Federation of Independent Businesses and the other from a coalition of the States, and heard oral arguments.[10] In National Federation of Independent Business v. Department of Labor, the Supreme Court issued its per curiam (unsigned) opinion joined by six justices including Chief Justice Roberts and Justices Kavanaugh, Thomas, Alito, Barrett,  and Gorsuch.[11] In the per curiam opinion, the Court first discussed OSHA’s ordinary process for issuing occupational safety and health standards, which requires the standards to be “reasonably necessary or appropriate to provide safe or healthful employment.”[12] When enacting these measures, there must be “notice, comment, and an opportunity for a public hearing.”[13] However, OSHA may deviate from these requirements when it issues “emergency temporary standards,” which take immediate effect upon promulgation and do not require notice or a public hearing.[14]

Although, these emergency standards are to be used only in the “narrowest of circumstances: [where] the Secretary must show (1) ‘that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,’ and (2) that the ‘emergency standard is necessary to protect employees from such danger.’”[15] The use of the emergency exception throughout history is extremely rare: it has been used only nine times, where six of those nine were challenged in court, and only one was upheld as constitutional.[16] In the past, this provision has been relied upon to address dangers that were unique to a particular workplace such as asbestos and certain chemicals.[17] This emergency procedure provision was the route OSHA took in issuing the Vaccination and Testing ETS and is the central issue in this case.[18]

The per curiam opinion then discussed that when an administrative agency, which derives its power from Congress, promulgates a regulation with this kind of economic, political, and personal significance, the Court expects Congress to express clearly that the administrative agency has the power to issue such a regulation.[19] Congress has authorized OSHA to regulate “‘occupational’ hazards and the safety and health of ‘employees.’”[20] However, the Court did not find that Congress had authorized OSHA to promulgate “broad public health measures”; rather, they were limited to setting “workplace safety standards.”[21]

While the Solicitor General argued that COVID-19 was a work-related danger due to the close proximity and time that people are exposed to each other, which are inherent and unique to the workplace setting, the Court disagreed.[22] Instead, the Court found that COVID-19 was not an occupational hazard, and was instead more of a universal risk that affected all individuals, analogous to other universal risks such as crime and air pollution.[23] Moreover, the per curiam opinion highlighted the permanency of the vaccine mandate and disagreed with the dissent’s comparison of the mandate to fire and sanitation regulations, which can be undone at a later point.[24] The Court acknowledged that more targeted regulations to combat the virus would be permissible, but this one was too broad and took on the “character of a general public health measure” due to its indiscriminate approach to risk across all private sectors.[25]

Next, the Court explained that it could not find any legislative support for the vaccine mandate; rather, the only notable action on the issue by either the House of Representatives or the Senate was the Senate’s majority vote disapproving the regulation.[26] Finally, the Court balanced the equities of issuing a stay versus waiting until the final disposition of the case and found that the compliance costs businesses would face in addition to the thousands of employees who would leave or lose their jobs due to the vaccine mandate was enough to justify the stay, providing interim relief to the plaintiffs.[27] Consequently, the Court found the plaintiffs were likely to prevail and granted their stay, focusing on the fact that while Congress had given OSHA the power to regulate occupational hazards related to the workplace, OSHA did not possess the power to regulate broad public health measures.[28] Thus, the per curiam’s main issues with the regulation were its scope and the fact that OSHA did not have the power to issue such a broad regulation.[29]

Justice Gorsuch wrote a concurring opinion, which was joined by Justice Thomas and Justice Alito.[30] The concurrence focused on the separation of powers between the different branches of government and who ultimately had the power to respond to the pandemic.[31] The concurrence concluded that the States and Congress possessed this power, not an administrative agency.[32] They found that Congress had not given OSHA the power to issue such a regulation and instead thought the vaccine mandate seemed more like a “legislative ‘work-around.’”[33] Moreover, they stated that “when Congress has sought to mandate vaccinations, it has done so expressly. . . . We have nothing like that here.”[34]

The concurrence next discussed the major-question doctrine, which requires administrative agencies to be able to trace their right to regulate the daily lives of Americans from a clear Congressional grant of power. [35] The major-question doctrine is similar to the nondelegation doctrine, which prohibits Congress from “delegating its legislative powers to unelected officials,” in that both doctrines have the purpose of protecting the separation of powers and making sure that new laws undergo the scrutiny of the democratic process.[36] Tying all of it together, the concurrence stated:

On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate. On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, the law would likely constitute an unconstitutional delegation of legislative authority.[37]

Finally, the dissenting opinion was written by Justice Breyer, joined by Justice Sotomayor and Justice Kagan.[38] The dissent also focused on who had the power within the branches of government to combat the pandemic and found it was OSHA.[39] They discussed COVID-19’s harmful and wide-reaching effects, noting that “more than 725,000 Americans had died of COVID-19 and millions more had been hospitalized” at the time the vaccine mandate was issued, that COVID-19 causes harm in nearly all workplaces across the country, and that the mandate was only temporary.[40] As a result, they found that the mandate was within the agency’s power and mission “to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents.”[41] The dissent pointed out that the majority did not argue that COVID-19 was not a “‘new hazard’ and ‘physical harmful agent’; that it poses a ‘grave danger’ to employees; or that a testing and masking or vaccination policy is ‘necessary’ to prevent those harms.”[42] Consequently, the dissent found it was improper to issue a stay because the equities in balancing the economic harms, which they thought were largely exaggerated and were balanced by countervailing economic benefits, in combination with the public interest to save lives did not weigh in favor of providing interim relief to the plaintiffs.[43] Moreover, without a legal basis, the dissent found the majority decision “undercut the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”[44]


Following the Supreme Court’s ruling in National Federation of Independent Business v. Department of Labor, the Department of Justice (DOJ) filed a motion to “dismiss as moot all of the consolidated petitions challenging OSHA’s vaccine-or-test mandate” in the Sixth Circuit.[45] The DOJ informed the Sixth Circuit that OSHA had decided to withdraw the Vaccination and Testing ETS after assessing the Supreme Court’s ruling.[46] Even though the Supreme Court had only decided whether to temporarily stay the ETS, the reasoning of the Court’s decision indirectly decided the merits of the case because the majority highlighted the fact that OSHA would need Congress to clearly delegate OSHA the authority for the ETS to be enforceable.[47] Without this delegation of authority, OSHA simply did not have the power to issue such a broad ruling.[48] Even though OSHA chose to withdraw the ETS, it left open the possibility of trying to eventually finalize a permanent vaccine and testing rule using OSHA’s ordinary procedure to promulgate workplace health and safety standards.[49] Nevertheless, unless Congress gives OSHA express statutory authority to issue a vaccine mandate or a ruling of this breadth, it is unlikely that the Supreme Court would find such a regulation constitutional in the future.[50] Thus, the Supreme Court’s ruling is significant in that it limits OSHA from issuing future regulations that resemble broad public health measures with this type of scope, instead restricting it to regulating traditional occupational hazards as well as issues that relate to the health and safety of employees.[51]

[1] Kevin Liptak & Kaitlan Collins, Biden Announces New Vaccine Mandates That
Could Cover 100 Million Americans
, CNN (Sept. 9, 2021), https://www.cnn.com/2021/09/09/politics/joe-biden-covid-speech/index.html [https://perma.cc/TU6J-G3Q2].

[2] Id.

[3] Occupational Safety and Health Administration, COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, 61532 (Nov. 5, 2021) (to be codified at 29 C.F.R. pt.1910, 1915, 1917, 1918, 1926, 1928).

[4] Id.

[5] US Department of Labor Issues Emergency Temporary Standard to Protect Workers from Coronavirus, U.S. Dep’t of Labor (Nov. 4, 2021), https://www.osha.gov/news/newsreleases/national/11042021 [https://perma.cc/J7SE-HE62].

[6] Id.

[7] See BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 610–12 (5th Cir. 2021); In re MCP No. 165, 21 F.4th 357 (6th Cir. 2021). See also David A Lieb, Geoff Mulvihill & Andrew Demillo, Lawsuits Over Workplace Vaccine Rule Focus on States’ Rights, Associated Press (Nov. 5, 2021), https://www.usnews.com/news/business/articles/2021-11-05/11-states-file-suit-against-bidens-business-vaccine-mandate [https://perma.cc/4T3M-JSYQ].

[8] BST Holdings, 17 F.4th at 610–12; In re MCP No. 165, 21 F.4th 357.

[9] See Nat’l Fed’n of Indep. Bus. v. DOL, OSHA, 142 S. Ct. 661 (2022).

[10] Id. at 664.

[11] Brial Paul & Aaron Van Oort, Supreme Court Decides Nat’l Fed. of Independent Business v. Occupational Safety and Health Administration, JD Supra (Jan. 14, 2022), https://www.jdsupra.com/legalnews/supreme-court-decides-nat-l-fed-of-9187506/ [https://perma.cc/9MJT-3A9T].

[12] Id. at 663 (citing 29 U.S.C. § 652(8)).

[13] Id. (citing 29 U.S.C. § 655(b)).

[14] Id. (citing 29 U.S.C. § 655(c)(1)).

[15] Id. (citing 29 U.S.C. § 655(c)(1)).

[16] Id. (citing BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 609 (5th Cir. 2021)).

[17] Id. at 668 (citing In re MCP No. 165, 20 F.4th 264, 276 (6th Cir. 2021)).

[18] Id. at 664.

[19] Id. at 665.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 666.

[25] Id.

[26] Id. (citing S.J. Res. 29, 117th Cong., 1st Sess. (2021)).

[27] Id.

[28] Id.

[29] See generally id. at 662–67.

[30] Id. at 667.

[31] Id.

[32] Id. at 670.

[33] Id. at 668.

[34] Id. (citing, as an example, 8 U.S.C. § 1182(a)(1)(A)(ii)).

[35] Id.

[36] Id. at 669.

[37] Id.

[38] Id. at 670.

[39] Id. at 676.

[40] Id. at 672–63.

[41] Id. at 670 (citing 29 U.S.C. § 655(C)(1)).

[42] Id. at 673.

[43] Id. at 675–77.

[44] Id. at 677.

[45] Shams Hirji, OSHA Announces Intent to Withdraw ETS, Sixth Cir. App. Blog (Jan. 26, 2022), https://www.sixthcircuitappellateblog.com/uncategorized/osha-announces-intent-to-withdraw-ets/ [https://perma.cc/8VJA-JLL4].

[46] Id.

[47] Id.

[48] Id.; see Nat’l Fed’n of Indep. Bus. v. DOL, OSHA, 142 S. Ct. 661 (2022).

[49] Occupational Safety and Health Administration, COVID-19 Vaccination and Testing; Emergency Temporary Standard, 87 Fed. Reg. 3298 (Jan. 26, 2022) (to be codified at 29 C.F.R. pt. 1910).

[50] Spencer Kimball, Biden Administration Withdraws Covid Vaccine Mandate for Businesses After Losing Supreme Court Case, CNBC (Jan. 25, 2022), https://www.cnbc.com/2022/01/25/covid-vaccine-mandate-osha-withdraws-rule-for-businesses-after-losing-supreme-court-case.html [https://perma.cc/NHF3-QX28].

[51] See 142 S. Ct. 661, 665 (2022).