A small business group is cheering the U.S. Supreme Court's decision to block a Biden administration attempt to mandate vaccine and testing rules for large companies. It would have meant up to 22 million more people would have been required to get a vaccine against COVID-19, or wear masks at work and be tested every week.
Chief Justice John Roberts Jr. and Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett formed a 6-3 majority to reject the Labor Department’s Occupational Safety and Health Administration mandate, which was issued in November.
Karen Harned, executive director of the National Federation of Independent Business Small Business Legal Center, told DOL Newswire that the NFIB was “happy” with the ruling.
“We had challenged the OSHA mandate," she said. "We’ve won our lawsuit and we were happy because the Supreme Court agreed with our arguments. We had argued that OSHA did not have authority to issue this mandate, that it was overly broad how it was done and that it didn't discern between industries and types of jobs.
“And the opinion they referenced, that the rule treated a lifeguard and a meatpacker the same way [although] their work experiences are completely different,” she said. “They noted what we said repeatedly, which is COVID just doesn't live at the workplace, it lives everywhere.”
Harned said the high court also agreed with the point that OSHA had attempted to exercise power it did not possess.
“They noted that OSHA not only used authority that we don't think it has, but it did it in a way, with its emergency authority that didn’t allow for notice of comment rulemaking, which is typical,” she said. “Basically, they agreed with us that it was a bridge too far. We heard immediately from members after the opinion issued that were so happy, so relieved. They had very much been concerned that they were going to lose employees had this mandate taken effect.”
The Wall Street Journal noted that the decision was not focused on whether the vaccine mandate was a good policy, but rather whether the Occupational Safety and Health Administration had the legal authority to issue the rule.
Harned said they will wait to see if there are further legal battles.
"It’s really up to the government what they want to do,'' she said. "Technically, it can go back to the 6th Circuit Court of Appeals. They can look at the merits of the case and whether or not they think the mandate is legal on the merits of the case. “Of course, if they do that we’ll be there to defend it. The issue is, though, that the ETS, the emergency rule, is scheduled to go out of effect.”
If it had been allowed to stand, it would have expired May 5.
“There’s no hearings scheduled in the 6th Circuit Court of Appeals right now so a lot would have to happen in four months,” Harned said. “I don’t even know if this decision would issue before the emergency rule expired. So that’s just something that OSHA’s got to work out. But from a practical standpoint, our members are just happy that the rule is not in effect and it will not go into effect until, the Supreme Court rules a different way, and we just don’t think that’ll ultimately happen.”
The six justices indicated they were not ready to allow it.
“Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the majority opinion stated.
The opinion did offer a glimpse of hope for the Biden administration, saying OSHA did have the authority to impose such a mandate in “particularly crowded or cramped environments.”
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, in a dissenting opinion, said OSHA was doing what it was designed to do.
“Who decides how much protection, and of what kind, American workers need from COVID-19?” their opinion stated. “An agency with expertise in workplace health and safety, acting as Congress and the president authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?
Roberts and Kavanaugh sided with the three liberal-leaning justices to allow a rule to stand that mandates vaccinations for health care workers at facilities that receive Medicaid and/or Medicare funds.
Harned said it was “disappointing” that 17 million health care workers will have to comply but noted NFIB was not involved in that part of the case.
On Jan. 7, the court listened to arguments from mandate opponents, led by states with Republican leaders, business groups, religious organizations and others, as well as government lawyers defending the OSHA rules.
After the Jan. 7 hearing, Harned told DOL Newswire that it appeared the court would rule against the OSHA mandate, saying “at the end of the day, I felt like [oral arguments] went well. I felt like it went well for our side, that we definitely made our points, which we did in the brief, and I still think that we're right on the law, that OSHA does not have the statutory authority to do such a broad mandate on so many businesses without distinction, requiring vaccine on an emergency basis.”
The 5th Circuit Court of Appeals issued a stay on the mandate, but when multiple cases were consolidated, the 6th Circuit reversed the stay Dec. 17, 2021, reinstating the OSHA mandate for the time being. A number of business associations and state governments quickly filed an application for the Supreme Court to stay the mandate.
In its filing, the NFIB argued that OSHA exceeded its authority. It said OSHA should have used the normal notice-and-comment process instead of the “rarely used and ill-defined ‘emergency’” process. NFIB believes that “a nationwide COVID-19 vaccine and testing mandate, monitoring and database is fundamentally a policy decision that should be left to Congress.”
Also, NFIB argued that OSHA’s mandate “will result in unrecoverable compliance costs, lost profits and lost sales, and further exacerbate the labor shortage for small businesses.”
NFIB and 25 other business associations argued that allowing OSHA’s mandate to stand could give the agency “limitless” power “by allowing the agency to target dangers that exist in workplaces only because they exist in the world at large.”
The brief cited a number of cases to support this argument, saying OSHA could target workplaces by regulating control what employee eat during the workday to control heart disease, or requiring flu or pneumonia vaccines.
“Like COVID-19, these societal health problems are not tethered to occupations; they appear in the workplace only because they exist in society at large,” the brief said.
More than 180 members of Congress submitted an amicus brief in support of the application to stay the mandate. The brief was organized by Sen. Mike Braun (R-Ind.), and signers include House Republican Leader Kevin McCarthy (R-Calif.), House Republican Whip Steve Scalise (R-La.), Senate Republican Leader Mitch McConnell (R-Ky.), Senate Republican Whip John Thune (R-S.D.).
In their brief, the lawmakers argued that OSHA promulgated “a sweeping, nationwide vaccine mandate on businesses intrudes into an area of legislative concern far beyond the authority of the agency.”
Also, they say it was done “through OSHA’s seldom-used ‘emergency temporary standard’ (ETS) provision that allows for bypass of notice and comment rulemaking under certain circumstances,” and “that OSHA exceeded its authority in enacting the ETS Mandate is not a ‘particularly hard’ question.”
Harned said the six-day wait was difficult.
“It was terrible, especially because technically the rule took effect on Monday because of just what they were going to do in enforcement,” she said. “We had members that were like, ‘What do I say? What do I say?’
"I didn’t want to tell them what to say, but we were hopeful that we’d get a decision soon and we did," she said. "But yeah, that was hard. That was very hard to be patient.”
While there were concerns some workers might resign over the mandate, which was in effect for four days, Harned said she has not heard any such reports.
Harned has been in her current position since April 2002. Prior to that, she was an attorney at a Washington, D.C., law firm specializing in food and drug law, where she represented several small and large businesses and their respective trade associations before Congress and federal agencies.
