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10 Points Regarding SCOTUS Ruling on Vaccine Mandates

January 14, 2022

By Brian Calley, SBAM President & CEO

When the Supreme Court blocked OSHA from implementing the “Emergency Temporary Standard” requiring employers with more than 100 employees to mandate vaccinations or weekly testing as a condition of employment, it was a big win for businesses of all sizes. This decision prevented a federal regulatory agency from expanding the scope of its authority far beyond what was statutorily authorized. It leaves the decision of whether or not to require vaccinations where it belongs – a matter between employers and their employees.

Technically, the court action was a “stay” of the rule, referring it back to the 6th Circuit Court of Appeals. But that stay was sent with very clear language of how that lower court must interpret the law. In other words, the case was referred back to be disposed of, not to explore more legal arguments. This matter is decided.

Here are a 10 points we thought you might be interested in. Bold points are made by me. What follows under each point is direct from the decision or applicable statement.

1. Congress had ample opportunity to weigh in on vaccine mandates and did not.

“Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”

2. The majority also took issue with the use of the Emergency Temporary Standard to bypass the processes normally used to promulgate new rules.

“Prior to the emergence of COVID–19, the Secretary had used this power just nine times before (and never to issue a rule as broad as this one). Of those nine emergency rules, six were challenged in court, and only one of those was upheld in full.”

3. In issuing the stay, the justices relied on a more plain reading of statute, without judging what Congress “should” do, but rather on what the law actually says.

“Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.”

4. The language against this expansion of OSHA’s scope strengthens as you read on in the decision, introducing what seems to be the crux of the decision: There is a major difference between workplace safety measures (clearly under OSHA authority) and broad public health measures to deal with risks not unique to the workplace.

“The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures.”

5. The decision also noted that the government defense did not dispute that OSHA is limited to occupational hazards.

“The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” Response Brief for OSHA in No. 21A244 etc., p. 45 (OSHA Response). She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree.

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. 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.”

6. Had OSHA regulated specific jobs where Covid-19 did present an occupational hazard, they might have prevailed.

“That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”

7. Technically, this decision is a stay of the rule and a referral back to the 6th Circuit Court of Appeals. But the Supreme Court gave the Court of Appeals no room find in favor of OSHA.

“This “lack of historical precedent,” coupled with the breadth of authority that the Secretary now claims, is a “telling indication” that the man- date extends beyond the agency’s legitimate reach.

Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

8. The White House appears to agree with our assessment that this is the end of the road for the OSHA mandate.

The White House noted in a statement after the court’s decision that “it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees.”

9. Justice Gorsuch put a finer point the decision, exhaling that the case was not about the wisdom of a vaccine mandate, but rather, who has the authority to implement one.

“The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little.”

10. The State will not pursue a mandate according to a statement put out by Governor Whitmer.

“We’ve reviewed the Supreme Court’s decision in the federal OSHA rule case and will comply with the ruling. While we’ve never had plans to implement any sort of statewide vaccine mandate, we’ve always believed that vaccines are the best way to protect ourselves, family, and ensure that businesses and schools can remain open safely. That’s why we continue to work with vaccine providers and the federal government to ensure that all eligible Michiganders have access to this safe and effective resource.”

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