NFIB v. OSHA Legal Review
Facts:
● The Occupational Safety and Health Act of 1970 (OSHA Act) created the Occupational Safety and Health Administration (OSHA) within the Department of Labor. OSHA’s intended purpose is to ensure “healthy working conditions” for working men and women and to “preserve our human resources” (29 U.S.C. §§651(b), (b)(5)).
● The OSHA Act authorizes the Secretary of Labor to promulgate “occupational safety and health standards” (§655(b)). With this power, the Secretary issued an Emergency Temporary Standard (ETS) under the conditions that employees were subjected to a “grave danger,” and the Secretary claimed the ETS was “necessary” to protect employees from this danger.2
● COVID-19 has caused the death of nearly a million Americans and has hospitalized close to four million as of 2022, solidifying this pandemic as an issue requiring swift agency action.2
● The ETS, published in the Federal Register on November 5, 2021, applied to all private employers with one hundred or more employees, impacting approximately 264,000 businesses and eighty-four million workers (two-thirds of the U.S. private workforce), making this a major question of national importance.3
● The ETS required each employee to be vaccinated against COVID-19 or to submit weekly testing and follow masking regulations at work. This regulation applies to all industries the same: there is no distinction between job types or levels of exposure. The ETS offered narrow exemptions for employees who worked remotely or outdoors.
● Employers who failed to comply with the ETS regulations risked being fined up to $13,653 per violation and $136,532 for repeated offenses, creating economic pressure on a large number of American workers.1
● OSHA claims that the ETS would save over 6,500 lives and help prevent over 250,000 hospitalizations within six months, strengthening the argument for the rapid enforcement of vaccination.2
Decision:
I affirm.
Reasoning:
Coming to my decision to affirm the Supreme Court’s ruling in NFIB v. OSHA, I find the majority to correctly interpret the Occupational Safety and Health Act and the constitutional limits on administrative agency authority. Although the COVID-19 pandemic introduced a national emergency, OSHA’s Emergency Temporary Standard reached beyond the scope of power that Congress intended the agency to have. The Court correctly reasoned that the agency standard functions closer to a sweeping health measure than an occupational safety rule, and agencies must refer to clear congressional approval before implementing solutions to major national policy questions.
standard functions closer to a sweeping health measure than an occupational safety rule, and agencies must refer to clear congressional approval before implementing solutions to major national policy questions.
The first and most compelling argument for affirming the majority decision is the principle that agencies may not assume powers that Congress has not clearly granted. The Supreme Court asserts that they “expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” 1It is evident that OSHA’s Emergency Temporary Standard was a major question: it applied to approximately eighty-four million American employees – nearly two-thirds of the private workforce. Furthermore, the requirement for either vaccination or weekly testing solidifies the ETS’s standing as a national public health policy.
Under the major questions doctrine, issues of “vast economic and political significance” must come from Congress, whose members are directly elected by the people.1 The Occupational Safety and Health Act provides OSHA with the power to regulate workplace dangers, not to mandate broad health measures that impact all facets of a citizen’s life. The claim that “most Americans have jobs” does not provide enough evidence to justify the enforcement of regulations that control the hazards of daily life.1
The Constitution divides power among the branches exactly for this issue: to prevent unilateral policymaking, especially when done by unelected officials. The majority opinion’s argument is strong. When the stakes are this high, with billions of dollars and tens of millions of workers in the crossfire, the people’s elected representatives, not an executive agency, should make the call.
Equally as persuasive as the Court’s assertion of the Emergency Temporary Standard as a major question, the majority distinguishes between occupational hazards and general health issues. They claim that “although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” 1It is clear that OSHA’s purpose is to regulate potential and active dangers in the workplace, not those that span beyond the realm of work. COVID-19, though it occurs and spreads in the workplace, is not limited to that setting. The difference is explained through the following analogy. OSHA may require a hard hat on a construction site in order to protect workers from potential injuries to their heads. However, whereas these hard hats can be removed upon conclusion of the workday, vaccines permanently alter one’s biological condition and cannot be withdrawn from a worker’s bloodstream upon the completion of their job. A vaccine, in this sense, regulates a person’s body instead of simply protecting them from workplace dangers. OSHA was designed to prevent injuries and illnesses caused by the job itself, not to control general health conditions that exist beyond the workplace.
The Occupational Safety and Health Administration intends to treat COVID-19 as if it were an occupational virus rather than a universal one, clearly overstepping its statutory authority. The Emergency Temporary Standard – requiring vaccination or weekly testing and masking – transforms OSHA into a public health agency. Congress did not permit this. The distinction between workplace safety and public health described by the majority opinion preserves the integrity of the OSHA Act and agencies in general.
The majority produces another compelling argument regarding the arbitrary nature of the vaccine requirements. The proposed vaccination of the majority of the American workforce occurs “simply because they work for employers with more than 100 employees.” 5This threshold appears to hold no rational connection to actual workplace risk. There is little evidence provided that finds COVID-19 to be any more transmissible in companies employing one hundred workers compared to those employing ninety. This numerical line appears to have been chosen solely for administrative convenience, not to ensure worker safety. OSHA fails to give empirical or scientific justification for this line, undermining its decision because of the long-standing expectation that agency action follows grounded evidence. The cutoff established by the Emergency Temporary Standard further exemplifies the arbitrary nature of the vaccine mandate and its standing as a sweeping public health measure detached from the agency's inherent purpose.
Another compelling reason to affirm the majority opinion lies in the practical reality of OSHA’s Emergency Temporary Standard. Although the ETS provides options for those who are unwilling to get the vaccination, these options are costly and inopportune. For the vast majority of Americans, the resources required to endure this weekly testing would effectively render the vaccine a mandate. The choice OSHA offers under the ETS is illusory for those unable to sacrifice the time and money required. The majority ruling in the Supreme Court correctly identified this vaccine as a mandate: it compels personal medical decisions through economic pressure. By effectively forcing workers to undergo a medical procedure, OSHA exceeds its statutory authority because it encroaches upon personal autonomy.
The dissent offers a compelling argument that OSHA acted within its statutory authority by addressing an issue of “grave danger,” which threatened the health and safety of workers.2 Furthermore, OSHA has the power to “protect employees from…exposure to harmful agents,” and COVID-19 clearly falls beneath this categorization.3 Through this text, Congress intends and actively encourages OSHA to take action when employees face threats to their safety. From this perspective, vaccination appears to be a justified measure to ensure the health of American employees. The dissenting side strengthens their argument for the Emergency Temporary Standard by citing the vast impact of COVID-19: it has caused the death of nearly a million Americans and has hospitalized close to four million.3 OSHA’s measures to ensure worker safety would likely save over 6,500 lives and help prevent over 250,000 hospitalizations within the next six months.3 COVID-19 clearly constitutes a “grave danger” for employees, and courts should defer to the expertise of the agency. The majority fights for statutory restraint to take priority over the prevention of catastrophic harm to American workers, causing more harm than benefit.
The dissent provides another persuasive argument: OSHA’s authority extends to “all hazards present in the workplace,” regardless of whether the dangers “exist beyond the workplace walls.” 4 The dissenting interpretation recognizes that OSHA’s responsibility has not been previously limited to dangers exclusive to a job. The court has established a precedent of allowing OSHA to regulate “fire, faulty electrical installations…, [and] unsafe drinking water.” 2 Despite these threats not being confined to the workplace, OSHA routinely manages such issues because of their inherent danger. The dissent extends this precedent to COVID-19, stating that this virus is in no way different than the previously listed risks. In this sense, COVID-19, though a public health issue, is a danger that is amplified within the workplace, giving OSHA the statutory authority to address it. The dissent’s reasoning aligns with both the statutory language and OSHA’s historical practice, emphasizing the necessity for agency action to protect worker health and safety.
Concluding Prediction:
In the short term, my decision to affirm the Supreme Court’s ruling in NFIB v. OSHA will likely reinforce limits on administrative authority. Emergency powers will not be used to justify nationwide mandates. Employers will directly benefit as they no longer need to bear the burden of compliance costs or expend effort to ensure that these regulations are met. At the same time, workers will regain the ability to make personal health decisions without being coerced by the government. Since OSHA cannot make the decision on vaccinations, there will likely be an increase in responsibility placed on state governments to decide on their own safety standards. Given this, local governments will be able to address problems in a way that best fits their populations.
In the longer term, this ruling will set a precedent for all administrative agencies by clarifying that they are unable to decide on major questions unless given specific statutory authority from Congress. Agencies will be more cautious about establishing regulations that cover large proportions of the American population unless there is direct written permission. The reaffirmation of the separation of powers will ensure that unelected officials will not be the ones put in charge of making decisions on major questions. Although this will strengthen the legal system, it may also slow the government’s ability to quickly address national emergencies in the future. Regardless, I believe that the majority ruling will bring positive long-term results by encouraging Congress to take a greater role in deciding regulations in crises and by maintaining the balance of power envisioned by the framers.
Beyond its legal implications, the majority decision will influence how the American public views government authority and personal freedom. By restricting agencies from acting without congressional approval, public confidence will likely increase, given that major policy decisions will not be imposed by unelected officials. Though some may desire swift government action, in the long term, the majority ruling will foster respect for the legal process. Citizens will take greater interest in elections knowing that their directly elected representatives hold the responsibility for passing laws that impact their lives. The ruling further establishes that while efficient government action in crises is important, preserving the rule of law is crucial in fostering public confidence and national stability.
1NFIB v. OSHA Canvas Blaw Case Pg. 6-7
2NFIB v. OSHA Canvas Blaw Case Pg. 2
3NFIB v. OSHA Canvas Blaw Case Dissent Pg. 1-2
4NFIB v. OSHA Canvas Blaw Case Dissent Pg. 7
5NFIB v. OSHA Canvas Blaw Case Pg. 9