In a 6-3 decision, the United States Supreme Court in Nat’l Fed’n of Indep. Bus. v. DOL[1] granted a stay of the Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing; Emergency Temporary Standard.[2]  The standard would have required employees of large employers to be fully vaccinated, or else obtain weekly medical tests and wear a mask every workday.


In September 2021, President Joe Biden announced “a new plan to require more Americans to be vaccinated” against the COVID-19 virus.[3]  As part of that plan, the President said that the Department of Labor would issue an emergency rule requiring all employers with at least 100 employees “to ensure their workforces are fully vaccinated or show a negative test at least once a week.”  The Secretary of Labor, acting through the Occupational Safety and Health Administration (“OSHA”), enacted the vaccine mandate, which employers were required to enforce.  The mandate applied to an estimated 84 million workers.  It required that covered workers receive a COVID-19 vaccine, and it pre-empted contrary state laws.  The only exception was for workers who obtained a medical test each week at their own expense and on their own time, and also wore a mask each workday.  Unvaccinated employees who would not comply with OSHA’s rule would have to be removed from the workplace.  Employers who committed violations could be fined up to $13,653 for a standard violation, and up to $136,532 for a willful one.[4]

OSHA published its vaccine mandate on November 5, 2021.  Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals, filing petitions for review.  The Fifth Circuit initially entered a stay.  However, when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect, holding that OSHA’s mandate was likely consistent with the agency’s statutory and constitutional authority.

Various parties then filed applications with the United States Supreme Court, requesting that the high court stay OSHA’s emergency standard.  The Supreme Court consolidated two of those applications—one from the National Federation of Independent Business, and one from a coalition of States.  Applicants sought emergency relief, arguing that OSHA’s mandate exceeded its statutory authority and was otherwise unlawful.


The United States Supreme Court noted that administrative agencies possess only the authority that Congress provided.  Congress enacted the Occupational Safety and Health Act in 1970.[5]  The Court explained that the Act created OSHA, which is tasked with ensuring occupational safety—that is, “safe and healthful working conditions.”[6]  OSHA is to enforce occupational safety and health standards promulgated by the Secretary.  Such standards must be “reasonably necessary or appropriate to provide safe or healthful employment.”[7]  However, “emergency temporary standards” are permissible when 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.”[8]

The issue before the Supreme Court was whether the Act authorized the Secretary’s mandate.  The Court concluded that the Act did not.  The Court explained that the Act empowers the Secretary to set workplace safety standards, not broad public health measures.  See 29 U. S. C. section 655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added by the Court)); Section 655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace).  The Court observed that the Act’s provisions typically speak to hazards employees face at work,[9] and that none of the Act’s provisions address public health more generally.

The Court elaborated that although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most, explaining that COVID-19 can and does spread not only in workplaces, but everywhere else that people gather as well.  The Courts stated that this kind of universal risk was no different from the day-to-day dangers that everyone faces from crime, air pollution, or other communicable diseases.  Permitting OSHA to regulate such hazards of daily life simply because most Americans have jobs and face those same risks while working would, in the Court’s view, significantly expand OSHA’s regulatory authority without clear congressional authorization.

The Court explained that where the virus posed a special danger because of the particular characteristics of an employee’s job or workplace, targeted regulations were permissible (such as for COVID-19 researchers, or for those working in particularly crowded or cramped environments).  However, OSHA’s “indiscriminate approach” with its mandate failed to account for the crucial distinction between such occupational-specific risk and risk more generally, and accordingly, the mandate was more like a general public health measure, rather than an “occupational safety or health standard.”  Section 655(b) (emphasis added by the Court).

The Supreme Court concluded that the applicants were likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate because the mandate extended beyond OSHA’s legitimate reach.  Accordingly, the Court granted the applications for the stay of the emergency rule.

Justice Breyer, Justice Sotomayor, and Justice Kagan dissented. They argued that OSHA’s emergency temporary standard requiring either vaccination or masking and testing fell within the core of OSHA’s mission: to “protect employees” from “grave danger” that comes from “new hazards” or exposure to harmful agents.  29 U. S. C. section 655(c)(1).  The dissent contended that the majority’s position was that OSHA could not keep workplaces safe from COVID-19 because the agency had no power to address the disease outside the work setting.  The dissent maintained that nothing in the Act’s text supported the majority’s limitation on OSHA’s regulatory authority, explaining the Act’s charge to OSHA of “assur[ing] so far as possible . . . safe and healthful working conditions”[10] did not depend on whether those hazards also existed beyond the workplace walls.  Nor was the temporary emergency standards provision dependent on whether employees were exposed to those dangers only while on the workplace clock.


Based upon the Supreme Court’s ruling, employers are not required to enforce OSHA’s mandate concerning employers with 100 or more employees.  However, employers should be aware of other legal requirements that arise from state or local law concerning the COVID-19 virus and the workplace. Employers are urged to consult their legal counsel in order to ensure compliance with applicable legal requirements.

As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.


[1] Nat’l Fed’n of Indep. Bus. v. DOL, 2022 U.S. LEXIS 496 (Jan. 13, 2022).

[2] 86 Fed. Reg. 61402.

[3] Remarks on the COVID-19 Response and National Vaccination Efforts, 2021 Daily Comp. of Pres. Doc. 775, p. 2.

[4] 29 CFR section 1903.15(d) (2021).

[5] 84 Stat. 1590, 29 U. S. C. section 651 et seq.

[6] Section 651(b).

[7] Section 652(8).

[8] Section 655(c)(1).

[9] As examples, the Court pointed to Sections 651, 653, and 657.

[10] 29 U. S. C. section 651(b).