National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration

The challengers to the OSHA rule requiring that employers with at least 100 employees require covered workers to receive a COVID–19 vaccine or else wear a mask and be subject to weekly testing are likely to succeed on the merits. In a per curiam (unsigned) opinion, the Court granted the application to stay the OSHA rule. Congress created OSHA to set workplace safety standards. The challenged rule goes well beyond that and is effectively a broad public health measure. Even the exceptional circumstances of the COVID-19 pandemic do not justify such an expansion in the agency's authority. Justice Neil Gorsuch authored a concurring opinion, in which Justices Clarence Thomas and Samuel Alito joined, reiterating that the States and Congress—not OSHA—have the authority to decide how to respond to the pandemic. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan filed a joint dissent, arguing that the pandemic directly affects the safety of workplaces and thus that OSHA has the authority to issue regulations to curb the effects of the pandemic in workplaces. The dissenters argue that by granting the stay, the Court acted outside of its competence and without legal basis, displacing the judgments of officials who have the responsibility and expertise to respond to workplace health emergencies.