Why NFIB Filed a Lawsuit Against the White House’s COVID-19 Vaccine Mandate

Date: November 18, 2021

NFIB argues that the vaccine mandate restricts small business freedoms and oversteps executive authority

Last week, NFIB filed a legal challenge against the Biden Administration’s emergency temporary standard (ETS) instructing the Occupational Health and Safety Administration (OSHA) to mandate that businesses with 100 or more employees require workers get the COVID-19 vaccine or undergo weekly testing and wear masks while at work.  

Currently, the rule is stayed from taking effect until the courts rule on its legality. In the meantime, OSHA is accepting comments on the rule, and is asking whether the mandate should be extended to all businesses regardless of size. They also ask whether all businesses should impose a mask mandate on employees regardless of vaccination status. We encourage small business owners to comment on this important rule by the December 6 deadline. To learn more about the rule and tell OSHA how this rule would affect your business, go to Regulations.gov. 

The mandate is intended to go into effect on December 5, 2021, with a vaccine or test deadline of January 4, 2022. The rule will remain in effect until May 5, 2022. To learn more about the mandate, read our explainer here. 

The NFIB Small Business Legal Center (SBLC) has filed a petition for review of the ETS on several grounds. “The small business economy is fragile, and owners continue to manage several business challenges regarding staffing and supply chain disruptions,” said SBLC Executive Director Karen Harned. “This mandate only increases those challenges and threatens to cause an enormous financial loss. Ultimately, the mandate restricts the freedom small business owners depend on to run their businesses and is a clear example of administrative overreach.” 

  • First, NFIB questions whether OSHA has the authority to issue such a mandate. Usually when OSHA issues a mandate, they use a “notice-and-comment” procedure where they gather public input beforehand. Instead, OSHA is relying on the rarely used, ill-defined “emergency” provision of the Occupational Health and Safety Act to immediately implement the mandate. 
  • NFIB also argues that the ETS exceeds the authority Congress has given OSHA. The power to institute a nationwide COVID-19 vaccine and testing mandate lies with Congress, not the White House or a federal agency like OSHA. NFIB is also concerned that if the OSHA mandate is allowed, it will set a bad precedent going forward of it and other federal agencies exceeding their legal authority. 
  • Most importantly, NFIB opposes the mandate as it 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 further exacerbate the labor shortage for small businesses. 

NFIB’s legal challenge was made before the United States Court of Appeals for the Fifth Circuit. On November 16, it was moved to the U.S. Court of Appeals for the Sixth Circuit to be consolidated with the many other challenges to the rule that were filed in courts across the country. NFIB was joined by ten other business associations in our challenge. 

NFIB also wants to hear from you on how the ETS would impact your business. Please take a few minutes to complete this NFIB survey. 

On Friday, November 19, NFIB will hold a webinar answering small business owners’ most pressing questions about the mandate. You can register for the free webinar here. 


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