Supreme Court Sides with NFIB
On January 13th, the Supreme Court sided with NFIB and saved America’s businesses from the onerous and unlawful Biden vaccine mandate. In a 6-3 decision, the Court concluded that plaintiffs were likely to succeed on the full merits of the case, and blocked OSHA from enforcing the ETS.
NFIB’s challenge to the ETS in the Supreme Court centered on three main arguments:
- OSHA needed to use the typical notice-and-comment procedure for the mandate to gather input.
- A nationwide COVID-19 vaccine and testing mandate, monitoring, and database was fundamentally a policy decision that should be left to Congress.
- The mandate would result in unrecoverable compliance costs, lost profits, lost sales, and further exacerbate the labor shortage for small businesses.
In its opinion, the Court defined the contours of OSHA’s authority to “ensure occupational safety” and “set workplace standards,” but not to set “broad public health measures” acting as a “blunt instrument” drawing no “distinctions based on industry or risk of exposure to COVID-19.” The Court further stated that the “universal risk” from COVID-19 is “no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases and [p]ermitting OSHA to regulate the hazards of daily life” would expand OSHA’s statutory authority without congressional approval.
Justices Gorsuch, Thomas, and Alito authored a concurrence. They agreed with the main opinion and stressed that our Constitution requires Congress and the States to take the lead in responding to the pandemic and public health emergencies. As such, OSHA had no authority to issue this ETS without a clear grant of authority from Congress.
Likely Next Steps
Now that the Supreme Court has blocked OSHA from enforcing the ETS, it is unclear what happens next. The ETS will expire on May 5, 2022. OSHA could continue to litigate the ETS in the Sixth Circuit, and the case would likely be appealed back to the Supreme Court. Alternatively, OSHA could withdraw the ETS entirely, draft a new rule, or seek notice-and-comment on the current ETS.
Regardless of OSHA’s next steps, NFIB is prepared to continue the fight against further administrative overreach.
For more information on the Small Business Legal Center visit nfib.com/legal.
Updated January 14, 2022