Using its increasingly notorious “shadow docket,” the United States Supreme Court recently stayed operation of the COVID-19 vaccine mandate that the Occupational Safety and Health Administration (“OSHA”) had imposed on large (more than 100 employees) employers nationwide.  See National Federation of Independent Businesses v. OSHA, ___ S. Ct. ___, 2022 WL 120952 (U.S. Jan. 13, 2022) (per curiam).

While ostensibly deciding only that vaccination mandate should be stayed pending appeal, NFIB v. OSHA is a thinly disguised decision on the merits.

Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.  Administrative agencies are creatures of statute.  They accordingly possess only the authority that Congress has provided. . . .  The question, then, is whether the [OSHA] Act plainly authorizes the Secretary’s mandate.  It does not.

Id. at *3.

To get to this result, the majority (there is a vehement dissent) decided that, even though employees obviously can (and have in great numbers) catch COVID-19 at work, it is not an “occupational” or “workplace” hazard under the Act.  Id. (“The Act empowers the Secretary to set workplace safety standards, not broad public health measures.”).  But the OSHA  Act’s emergency section (allowing temporary bypass of notice and comment rulemaking) does not even include the highlighted word “workplace” – only “employees”:

The Secretary shall provide . . . for an emergency temporary standard . . . if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.

29 U.S.C. §655(c)(1).  Nonetheless NFIB v. OSHA draws a distinction between “hazards that employees face at work” and “broad public health measures.”  We have a hard time with that distinction.  Sure, gravity is not a specifically employment-related hazard − a person can fall down the stairs anywhere – but that does not, to our way of thinking, prevent OSHA from requiring workplaces to construct railings to prevent falls by their employees.

To us it seems self-evident that the COVID-19 virus is a “physically harmful” “agent” that can pose a “grave danger” to “employees,” whether or not (like gravity) it can cause non-occupational injuries as well.  That’s all that the Act requires, and that should be enough.  “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.”  Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1737 (2020) (Gorsuch, J.).

But the majority in NFIB v. OSHA decided to take a pass on textualism.  Their gripe is something more general.  Regardless of what the Act provides, “imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not part of what the agency was built for.”  2022 WL 120952, at *3 (quotation marks omitted).  What that “something” is appears to be that, since we (thankfully) hadn’t had a pandemic since OSHA was enacted in 1970, OSHA hasn’t previously addressed the effect of epidemic disease in the workplace:

It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind − addressing a threat that is untethered, in any causal sense, from the workplace.  This lack of historical precedent, coupled with the breadth of authority that the Secretary now claims, is a telling indication that the mandate extends beyond the agency’s legitimate reach.

Id. at *4 (citations and quotation marks omitted).  This is also the point made by the concurrence, which relies on something it calls the “major questions” doctrine.  Id. at *5-6 (Congress must “speak clearly” when conferring on an administrative agency power to make decisions “of vast economic and political significance”) (Gorsuch, J., concurring).

This is a point for which we have more sympathy.  We have invoked a similar principle on a number of occasions:  “Congress does not . . . hide elephants in mouseholes.”  Indeed, we expressed the same sentiment when the FDA – after decades of inaction – decided that it could regulate tobacco products after all.  “[W]hat Congress ratified was the FDA’s plain and resolute position that the FDCA gives the agency no authority to regulate tobacco products as customarily marketed.”  FDA v. Brown & Williamson, 529 U.S. 120, 159 (2000).

But the difference here is (at least) two-fold.  First, unlike the FDA’s tobacco missteps (after which Congress amended the statute), the statute here expressly grants OSHA the power to address “physically harmful” “agents” – specifically including “new hazards” – that pose “grave danger” to “employees,” and to do so on an emergency basis.  Simply put, there is no mousehole.  Second, unlike the FDA, which could have sought to regulate tobacco for decades, but didn’t, the “lack of historical precedent” on which NFIB v. OSHA rests its holding is because the current pandemic is unprecedented.  There hasn’t been a public health crisis even approaching the magnitude of COVID-19 in over a century, since before the now prevalent administrative state even existed.  And, even then, the Court is simply wrong.  OSHA has previously regulated pathogens in the workplace, even though those pathogens also constitute a general “public health” problem.  See 29 C.F.R. §1910.1030(f) (“bloodborne pathogens” including hepatitis vaccination); cf. 81 Fed. Reg. 62817 (HHS Sept. 13, 2006) (discussing dissolution of prior “outmoded” smallpox vaccine compensation fund after smallpox was eradicated through vaccination).

The way we see it, this is no longer a “conservative” Supreme Court, but rather a Court with a radical majority that is opposed to the administrative state as it currently exists.  In an attack the administrative state, this majority has seen fit to engage situational anti-textualism to support their unprecedented interference with the federal response to the worst public health crisis of our lifetimes.

So what can governments still do to mandate COVID-19 vaccination?

A great deal, actually.

First, nothing in NFIB v. OSHA prevents OSHA from enacting general regulations, through ordinary notice and comment rulemaking, requiring mandatory workplace vaccination under specified conditions.  If OSHA can regulate health procedures, including vaccination, for bloodborne pathogens, then it should be able to do the same for airborne pathogens.

Second, as NFIB v. OSHA acknowledges OSHA (and other agencies such as FEMA) can immediately mandate COVID-19 vaccination to address “occupation-specific risks related to COVID-19.”  2022 WL 120952, at *4.

Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. . . .  So too could OSHA regulate risks associated with working in particularly crowded or cramped environments.

Id.

“Targeted” vaccination mandates fall squarely within OSHA’s historical writ.  It would be the height of judicial triumpalism for even this radical majority to second-guess vaccination mandates for, say meatpacking, airlines, prison guards, or employees whose jobs expose them to the general public, on the grounds that they know better than OSHA what an “occupation-specific risk” is.  Along these lines, we further note that the more targeted vaccine mandate for healthcare employees issued by the Center for Medicare Services was simultaneously allowed to proceed by the Court.  See Biden v. Missouri, ___ S. Ct. ___, 2022 WL 120950, at *2-3 (U.S. Jan. 13, 2022) (a 4-5 decision with the situational anti-textualists dissenting).

Third, NFIB v. OSHA is entirely an administrative law decision.  It applies to no other statute and does not involve anything constitutional.  It does not affect vaccine mandates imposed under the authority of other federal statutes.  It does not affect any state- or locally-enforced vaccine mandate.  See 2022 WL 120952, at *5 (“There is no question that state and local authorities possess considerable power to regulate public health.”) (Gorsuch, J., concurring).  It certainly does not preclude private employers, as we discussed here, from imposing their own vaccine mandates.

As the pandemic has evolved, and continues to evolve, a high risk of serious injury and death by COVID-19 has increasingly become limited to the unvaccinatedEpidemiology “confirms that unvaccinated people are 7.1 times more likely to be hospitalized than vaccinated people, and 13.8 times more likely to be in intensive care.”  We did our own research − stories that unvaccinated persons suffer 90%+ of serious COVID cases are legion.  The unfortunate practical result of NFIB v. OSHA will be that, in the absence of a uniform federal response, states and localities with responsible government will require vaccination, and those that don’t won’t.  That split will further concentrate the pandemic’s adverse effects on those least likely to get vaccinated, precisely those who would benefit the most from vaccination against what remains (especially among those who aren’t) a deadly and debilitating virus.