At the U.S. Supreme Court, NFIB Opposes OSHA’s Vaccine Mandate for Businesses with 100 or more Employees

Date: January 11, 2022

NFIB urges Court to issue a stay on the Biden Administration’s mandate for employers to require vaccination or weekly testing

On Friday, January 7, an attorney for NFIB appeared before the U.S. Supreme Court in a case involving OSHA’s COVID-19 Emergency Temporary Standard (ETS) vaccine mandate, which requires businesses with 100 or more employees to have employees vaccinated or undergo weekly testing and wear masks while at work.

“Our attorney did an excellent job explaining to the Court how OSHA is using its authority in an unprecedented way, something way outside the bounds Congress intended,” said Legal Center Executive Director Karen Harned after the Supreme Court hearing. “To businesses that include 80 million workers across America, this is outside OSHA’s authority. OSHA is in charge of workplaces – not public health.”

NFIB’s case hinges on three main points:

1. Usually when OSHA issues a rule, they use a “notice-and-comment” procedure where they gather public input beforehand. Instead, OSHA is relying on a rarely used, ill-defined “emergency” provision of the Occupational Health and Safety Act to immediately implement the mandate. NFIB argued that the emergency provision does not allow for such a sweeping mandate.

2. NFIB also argued that the ETS exceeds the authority Congress has given OSHA. The power to institute a nationwide COVID-19 vaccine and testing mandate belongs to Congress, not to the White House or a federal agency like OSHA. NFIB argued that OSHA does not have the legal authority to issue a mandate concerning a virus present in all spaces, instead of just workplaces. NFIB is also concerned that, if upheld, the OSHA mandate sets a bad precedent going forward, allowing OSHA and other federal agencies to exceed their legal authority to respond to a variety of “crises” we cannot even anticipate at this time.

3. Most importantly, NFIB argued that the mandate restricts the freedom of small business owners to decide how best to operate their businesses and it imposes unwarranted burdens on small businesses that will further threaten their fragile recovery from the COVID-19 pandemic. The mandate will result in unrecoverable compliance costs, lost profits, lost sales, and worsen the labor shortage for small businesses.

Small businesses continue to manage unprecedented challenges such as staffing shortages, supply chain disruptions, and ongoing COVID-19 variants. Additional mandates for small businesses will only intensify those current challenges and slow down economic recovery. Small business owners depend on the freedom to decide how to run their business and this mandate is an intrusion on that freedom.

The NFIB Small Business Legal Center previously filed a legal challenge against the ETS with the U.S. Court of Appeals for the Fifth Circuit. The court stayed the ETS until the legal challenge could be resolved. However, in December, the U.S Court of Appeals for the Sixth Circuit overturned the Fifth Circuit’s stay of the mandate and reinstated the ETS. NFIB, alongside 25 other business associations, petitioned the U.S. Supreme Court to issue a new stay of the ETS, resulting in the Jan. 7, 2022 hearing in NFIB v. Department of Labor, Occupational Safety and Health Administration. The U.S. Supreme Court has not yet ruled on NFIB v. Department of Labor, Occupational Safety and Health Administration.

You can watch the full Supreme Court hearing here. 

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