Ignoring Inequalities and Refusing to Consider Consequences: The Supreme Court’s Blocking of OSHA’s Emergency COVID Standard

By Brandon Vaca[1]

On January 13, the six conservative Justices on the U.S. Supreme Court stayed (blocked) and effectively struck down the Occupational Safety and Health Administration’s (OSHA’s) emergency vaccine-or-test standard (Standard) for employers.[2] The Court’s reasoning in its unsigned opinion ranges from vexing to troubling. As the three dissenting Justices pointed out, the Court read limitations into the relevant statute.[3] To get from its statutory interpretation to its decision to stay the Standard, the majority had to ignore basic inequalities at the workplace and obscure the Standard. Moreover, the Court’s argument exonerates the Justices from considering the possibility that thousands could die because of their discretionary decision. Regardless of how the COVID-19 pandemic and safety measures develop, the Court’s opinion is remarkable because it is silent about inequalities at the workplace and because it lays a path for the Court to ignore the consequences of its decisions to stay government action. 

The Standard applied only to workplaces and permitted medical and religious exemptions to vaccination. 

The Standard only applied to the workplaces of employers with 100 or more employees.[4] These employers had two options: (1) require employees who did not have a legally-recognized medical or religious exemption to be vaccinated against COVID-19 or (2) institute a mandatory testing and masking policy.[5] Though the Standard allowed employers to pass the cost of COVID testing on to their employees, it did not prevent any other laws, rules, or agreements requiring an employer to foot the bill.[6] The Standard would have provided a much-needed safety minimum for most of the country’s workplaces and, most importantly, OSHA estimated that the “standard would save over 6,500 lives and prevent over 250,000 hospitalizations.”[7] 

The Court’s vexing statutory interpretation. 

The majority, by emphasizing certain words in the OSH Act (the statute that created OSHA),[8] determined that the Standard exceeded OSHA’s statutory authority.[9] For example, the Court emphasized that the statute directs the Secretary of Labor to set “occupational safety and health standards” (italics added by the Court) and permits the Secretary to issue an ETS to protect “employees.”[10] While the parties in the case agreed that terms like “occupational” and “employees” restrict OSHA’s regulatory authority to the nation’s workplaces,[11] the majority went farther. The Court concluded that, because the statute contains terms like “occupational” and “employees,” OSHA can only regulate hazards that are particular to workplaces, i.e., hazards that are not encountered (at least to the same “degree and kind”) outside the workplace.[12] This is a vexing interpretation because, as the dissent points out, the statute does not mention any such requirement and existing OSHA rules already address common hazards like fire, excess noise, and unsafe drinking water when experienced on the job.[13] 

To block the Standard, the Court had to ignore basic inequalities at the workplace.

To get from the Court’s statutory interpretation to issuing a stay, the majority had to overcome two problems. First, the Court had to assert that there is nothing unique about an employee’s risk of exposure to COVID at work compared to a person’s risk of exposure outside of work. Second, the Court had to account for existing OSHA regulations that seemingly contradict its statutory interpretation. 

Arguing that the risk of exposure to COVID at work is no different than other areas of life, the Court claimed the following without citing any data. 

Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.[14] 

The Court’s reasoning here ignores the power of employers over employees, despite both OSHA and the dissent specifically pointing out this disparity.[15] Unlike a spectator attending a sporting event, employees can be required to physically attend their workplace and to interact face-to-face with customers who refuse or are not required to take COVID precautions. For many, physically going to work is not optional, and this is especially true for workers in households with lower incomes. Once at their job, employees cannot control their workplace. Even if employees are unionized and can negotiate with their employer for safe work conditions, employers are not required to meet a union’s demands. If an employer lets employees work unmasked and unvaccinated, an employee cannot control whether their unmasked colleague works near them. Nor can the employee control whether their colleague comes to work sick, which some employers are reportedly forcing their workers to do. Employees can also be more likely to come to work sick if they do not have access to paid sick leave, a reality faced by roughly 24 million workers in service occupations  (41%) and most workers with part-time jobs63% of whom are women. Even if an employer attempts to institute COVID precautions like masking or a vaccine mandate, some states have required so many exemptions for workplace COVID precautions that these efforts have little effect. Other states have recently revoked workplace COVID safety standards. The OSHA Standard, on the other hand, would have preempted state laws limiting COVID precautions.[16] 

In its opinion, the Court persistently framed the Standard as threatening to impose a difficult choice on employees who do not want to be vaccinated.[17] However, the majority ignored the potentially life-or-death choice employees already face when deciding to go to work. This is especially true for those who live with people who are ineligible to be vaccinated—like children under 5 years old—or have increased risk of severe illness because of a medical condition

The Court “obscure[d]” the Standard to differentiate it from previous OSHA regulations and created contradictory conclusions. 

The Court’s interpretation of the OSH Act threatened to overturn existing OSHA regulations that addressed general hazards when faced in the workplace.[18] The Court addressed these regulations by differentiating them from the Standard.[19] It did this by “obscur[ing]”[20] the Standard as a “vaccine mandate” and neglecting to mention in the relevant section of the opinion that the Standard included a mask and test option as well as religious and medical exemptions.[21] 

The dissent contends that OSHA’s mandate is comparable to a fire or sanitation regulation imposed by the agency . . . But a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, “cannot be undone at the end of the workday.” In re MCP No. 165, 20 F. 4th, at 274 (Sutton, C. J., dissenting). Contrary to the dissent’s contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not “part of what the agency was built for.”[22]

But, the majority later stated that OSHA can require vaccinations for employees in workplaces where the threat of COVID exposure is different in “degree and kind” from “the everyday risk of contracting COVID that all face.”[23] Again, the Court did not cite evidence indicating what the “everyday risk of contracting COVID that all face” is or how it compares to the workplace. 

The result of the Court’s reasoning is a collection of confusing and contradictory conclusions. OSHA cannot regulate general hazards.[24] But, OSHA can regulate general hazards when encountered at workplaces,[25] but not if the regulation requires employees to undergo an irreversible treatment like a vaccine[26] (though this is not what the Standard requires[27]). Yet, OSHA can require vaccination if the risk from the general hazard is “different in degree and kind” to what the Court believes is the normal risk.[28]

The Court used its statutory interpretation to avoid considering those who might suffer because of its decision. 

The Court blocked enforcement of the Standard by issuing a stay pending appeal.[29] At the time, the case contending the legality of the Standard (i.e., the case on the merits) was still being heard by the Sixth Federal Circuit. Hearing and deciding cases on the merits, however, can take a long time. In the time it takes for a case to be argued and decided, parties can be harmed by actions that the court ultimately finds to be illegal. This is one reason why courts will consider ordering a party not to do something (i.e., a court will enjoin or stay the party’s action) until the case is decided. That is what happened here with OSHA’s Standard. Decisions about whether to enjoin a party can be decided faster than cases on the merits, which is why this case rapidly rose to the Supreme Court and why the Court was able to decide it so quickly. 

The Supreme Court has explained that no party in a case has a right to a stay, even if they might be harmed without one.[30] Whether or not to issue a stay is up to the discretion of the court.[31] When deciding whether to issue a stay, courts traditionally consider:  

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.[32] 

Comparing the relative harm sustained by the parties and the public as a result of issuing an order (like a stay) is often called “balance[ing] the equities.”[33] The Court has recently stated that “‘before issuing a stay, it is ultimately necessary to balance the equities—to explore the relative harms’ and ‘the interests of the public interest at large.’”[34] 

According to its own precedent, the Court should have balanced the equities in this case. The majority, however, avoided this step. Though stating that “[t]he equities do not justify” refusing to stay the Standard, it did not explain why. Rather, the majority stated that it is “not [the Court’s] role to weigh” the potential harms that blocking or refusing to block the Standard could cause.[35] Instead, the majority reasoned that, because the Standard exceeds OSHA’s statutory authority, it is the role of Congress to weigh these potential harms. This reasoning treats the majority’s argument that the Standard exceeds OSHA’s statutory authority as binding, i.e., as if its opinion here was a decision on the merits. But this was not a decision on the merits; this was a decision on whether or not to issue a stay. According to the Court’s own precedent, it should have only considered the likelihood of a party’s success on the merits. The majority’s interpretation at this point was not supposed to be the final word on the legality of the Standard.[36]

What all this suggests is that the Court no longer has to consider who will be hurt by its discretionary decisions staying the enforcement of laws or rules, so long as the Court determines that the law or rule probably exceeds the government entity’s authority. The Court’s technically nonbinding statutory interpretation can exonerate it from considering the life-or-death consequences of its discretionary action. In this, the Court’s blocking of the Standard not only ignores inequalities; but suggests a way for the Court to ignore the consequences of staying government action.

[1] J.D. Candidate, University of Minnesota Law Class of 2022, JLI Vol. 40 Online Editor

[2] For excellent discussions on this decision, see Amicus: COVID in the Courtroom (Jan. 15, 2022), https://slate.com/podcasts/amicus/2022/01/andy-slavitt-supreme-court-covid-pandemic; Strict Scrutiny: Putting the F in FDR (Jan. 17, 2022), https://strictscrutinypodcast.com/podcast/f-in-fdr/.

[3] National Federation of Independent Business v. Department of Labor, 595 U.S. ___, ___ (2022) (per curiam) (Breyer, Sotomayor, and Kagan, JJ., dissenting) [hereinafter Dissent] (slip op. at 6-7).

[4] National Federation of Independent Business v. Department of Labor, 595 U.S. ___, ___ (2022) (per curiam) [hereinafter Majority] (slip op. at 1).

[5] Dissent at 3.

[6] 86 Fed. Reg. 212 at 61553.

[7] Dissent at 11 (citing 86 Fed. Reg. 61408).

[8] Dissent at 6-7.

[9] Majority at 6. The majority also stated that the Standard was an “exercise of powers of vast economic and political significance” that required specifically-worded mandate from Congress. Id. Unfortunately, the Court neglected to discuss what constitutes such an exercise of power and how precise the mandate from Congress must be. Id. As Professor Leah Litman summarized, the Court—in Ron Burgundy-esque fashion—just thought that the Standard was “kind of a big deal” without clear reasons why. See Strict Scrutiny at 41:35.

[10] Majority at 6.

[11] Dissent at 6.

[12] Majority at 6-7.

[13] Dissent at 7-8.

[14] Majority at 6-7.

[15] Dissent at 8-9.

[16] 86 Fed. Reg. 61551.

[17] Majority at 1, 5-9.

[18] Id. at 6-7.

[19] Id. at 7. The Court does not specifically address whether its statutory interpretation threatens the legal status of OSHA regulations aimed at general hazards.

[20] Dissent at 3.

[21] Majority at 7.

[22] Id.

[23] Id.

[24] Id. at 6-7.

[25] Id. at 7.

[26] Id.

[27] Dissent at 3.

[28] Majority at 7. “Believes” is appropriate here because the Court does not cite evidence supporting its claim that workplace risk of COVID exposure is the same as what all people face. Id. Additionally, the Court ignores evidence suggesting that workplace risk is greater. Dissent at 8-9.

[29] Majority at 9.

[30] Id.

[31] Nken v. Holder, 556 U.S. 418, 427 (2009). Chief Justice Roberts authored the majority opinion in Nken.

[32] Id. at 426 (emphasis added). See also dissent at *4 citing Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___, ___ (2020) (per curiam) (slip op., at 2). When the Government is the party opposing the stay, the third and fourth factors merge. Nken, 556 U.S. at 435.

[33] See, e.g., Holtzman v. Schlesinger, 414 U.S. 1304, 1308-09 (1973) (Marshal, J, Circuit Justice).

[34] Dissent at 11 (quoting Trump v. International Refugee Assistance Project, 582 U.S. ___, ___ (2017) (per curiam) (slip op., at 10)).

[35] Majority at 8-9.

[36] See Nken at 421 (“A stay does not make time stand still, but does hold a ruling in abeyance to allow an appellate court the time necessary to review it.”).