The Occupational Health and Safety Administration [OSHA] is authorized by statute to issue emergency temporary standards if it "determines (A) 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 (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1)
IN RE: MCP NO. 165, Occupational Safety and Health Administration, Interim Final Rule: Covid-19 Vaccination and Testing; Emergency Temporary Standard 86 Fed. Reg. 61402. 2021 WL 5989357 United States Court of Appeals, Sixth Circuit.
The United States Supreme Court in National Federation of Independent Businesses v. OSHA today declared void an Emergency Temporary Standard which would if implemented compel the employees of large companies to be vaccinated or tested for covid. The Court [6-3] declared that the order is a broad public health measure beyond the scope of the Department of Labor which is to protect occupational health.
Their principal tool is the so-called `major questions doctrine' by which the unelected branch commands Congress on how "clearly" it must speak. Swept aside is any notion of deferring to the expertise of administrative agencies - like the Department of Labor which can turn to the OSHA law-created National Institute of Occupation Safety and Health, or the other resources within the Centers for Disease Control.
Declaring that the issue is of who decides - Associate Justice Neil Gorsuch said it is the States or Congress - not the Occupational Safety and Health Administration. But it is the President who ultimately commands the executive departments and the President is constitutionally bound to "take care that the Laws be faithfully executed". Article II, Section 3
Justice Stephen Breyer, joined by Justices Kagan and Sotomayor wrote that today's majority decision
stymies the Federal Government’s ability to counter the unparalleled threat that COVID–19 poses to our Nation’s workers. Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.
- GWC
21A244 National Federation of Independent Business v. OSHA (01/13/2022)Applicants now seek emergency relief from this
Court, arguing that OSHA’s mandate exceeds its statutory
authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their applications and
stay the Emergency Temporary Standard rule.
***
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.” In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.
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. See 29 U. S. C. §655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace). Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. See, e.g., §§651, 653, 657. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.
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