In re OSHA COVID-19 Emergency Rule on Vaccination and Testing

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard requiring large employers to encourage workers to be vaccinated against COVID-19 by adopting policies requiring that workers either be vaccinated or undergo regular COVID testing and wear face masks at work. The policy was immediately challenged by conservative states, ideological groups, and some business interests in every one of the regional federal courts of appeals. Even before the cases could be consolidated and randomly assigned to a single court, as required by law, a panel of the Fifth Circuit issued a stay against the rule. Although the statute explicitly provides for emergency temporary standards targeting any “agent” determined to be “physically harmful” if it poses a “grave risk” to workers, the panel questioned whether the Occupational Safety and Health Act authorized OSHA to issue rules protecting workers against viruses.

After the case was randomly assigned to a different court of appeals, the Sixth Circuit, OSHA moved to lift the stay issued by the Fifth Circuit panel. On behalf of three former OSHA Administrators, Charles Jeffress, David Michaels, and Gerard Scannell, Public Citizen Litigation Group filed an amicus curiae brief supporting OSHA’s motion. The brief explained that the statutory language broadly authorizes standards protecting against harmful agents, a term whose plain meaning includes viruses; that other provisions of the OSH Act also make clear that OSHA may target infectious agents and may issue standards that involve vaccination; that OSHA has for many years regulated to protect workers against viruses and other infectious agents; that OSHA’s view would be entitled to deference even if the statutory language were not clear; and that the Fifth Circuit’s suggestion that OSHA may not provide workplace protections against threats also found outside workplaces, has no support in the language of the OSH Act or OSHA’s 50-year history of administering it.

On December 17, 2021, the Sixth Circuit granted OSHA’s motion to lift the stay. The challengers immediately filed applications for stays in the Supreme Court. In opposition to the stay applications, we again filed an amicus brief on behalf of the three former OSHA administrators. On January 13, the Supreme Court, reversing the Sixth Circuit’s decision and construing the emergency standard as a “vaccine mandate,” held that the challengers were likely to succeed on the merits of their claim that OSHA lacked authority to impose the standard. OSHA then withdrew the emergency standard, which ended the case.