NFIB v. OSHA
595 U.S. 109
SCOTUS2022Background
- OSHA issued an Emergency Temporary Standard (ETS) requiring employees of employers with 100+ employees to be vaccinated for COVID-19 or submit to weekly testing and wear masks; the rule covered about 84 million workers and allowed narrow exemptions.
- The ETS was promulgated under the Occupational Safety and Health Act’s emergency provision, 29 U.S.C. §655(c)(1).
- Multiple States, businesses, and organizations challenged the rule; the Fifth Circuit initially stayed the ETS, the consolidated Sixth Circuit dissolved that stay, and petitioners sought emergency relief from the Supreme Court.
- The Supreme Court, in a per curiam opinion, granted the applications and stayed OSHA’s ETS pending further review, concluding petitioners were likely to succeed on the merits because OSHA lacked clear statutory authority for such a broad mandate.
- Justice Gorsuch (joined by Justices Thomas and Alito) wrote a concurring opinion emphasizing the major-questions and nondelegation concerns; Justices Breyer, Sotomayor, and Kagan dissented, arguing OSHA acted within its statutory mandate and that the public interest weighed against a stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSHA had statutory authority under the OSH Act to impose a nationwide vaccine-or-test ETS covering ~84 million employees | OSHA exceeded its statutory authority; the Act authorizes regulation of occupational hazards, not broad public‑health mandates affecting daily life | The virus is a "new hazard" and a "physically harmful agent" in workplaces; §655(c)(1) authorizes an emergency standard necessary to protect employees | Stay granted — Court: petitioners likely to prevail because the Act does not plainly authorize an agency action of this magnitude |
| Whether the major‑questions / nondelegation doctrines bar OSHA’s asserted authority | Such a far‑reaching policy implicates major political and economic questions and requires a clear congressional grant; otherwise it is an unlawful delegation | Congress gave OSHA emergency authority to protect employees from grave workplace dangers; no major‑questions obstacle applies | Concurring opinion stressed major‑questions/nondelegation rationale supporting the stay |
| Whether the ETS is a workplace regulation (permitted) or a general public‑health measure (beyond OSHA) | The ETS is a general public‑health mandate untethered to occupational‑specific risks and therefore beyond OSHA’s mission | The ETS targets transmission risk in workplaces where employees have limited control and thus fits OSHA’s occupational safety mission | Court concluded the ETS looks like a general public‑health measure and not a standard clearly authorized for OSHA |
| Whether equities and public interest support denying a stay (irreparable harm, balance of harms) | Petitioners would suffer massive compliance costs and workforce disruption; public interest supports relief | The ETS would prevent thousands of deaths and hospitalizations; public interest favors allowing ETS to take effect | Court granted stay despite government’s public‑health arguments; dissent argued the balance of harms and deference to agency warranted denial of stay |
Key Cases Cited
- BST Holdings, L.L.C. v. Occupational Safety & Health Admin., 17 F.4th 604 (5th Cir. 2021) (court below and precedent addressing OSHA emergency standard challenges)
- Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477 (2010) (historical practice or lack thereof informs limits on agency power)
- Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001) (agencies may not "hide elephants in mouseholes")
- MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (1994) (major questions doctrine applied to significant regulatory changes)
- King v. Burwell, 576 U.S. 473 (2015) (limits on agency authority when statutes address major policy questions)
- Department of Transportation v. Assn. of American Railroads, 575 U.S. 43 (2015) (separation of powers concerns and limits on agency action)
- Industrial Union Dept., AFL–CIO v. American Petroleum Inst., 448 U.S. 607 (1980) (statutory constraints and agency rulemaking under health‑safety statutes)
- American Textile Mfrs. Institute v. Donovan, 452 U.S. 490 (1981) (substantial‑evidence review of agency factual determinations)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (standard of review for administrative factfinding)