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OSHA's Vaccine Mandate: What's the Answer to the 'Major Question'?

By Steven Ellison, Esq. on January 12, 2022 1:56 PM

In an unusual January 7 special session, the U.S. Supreme Court heard oral arguments on a U.S. Occupational Safety and Health Administration (OSHA) regulation forcing employers of more than 100 people to require either COVID-19 vaccination or mask-and-testing requirements for their employees. This is commonly referred to as the "vaccine mandate."

That mandate went into effect on January 4 and affects nearly 84 million workers. The Court is deciding whether to postpone the mandate while lower courts more fully consider if the mandate is legal.

The argument boils down to what specific words precisely mean. So you will see a lot of phrases here in quotes. It's up to the Supreme Court to determine what these phrases mean.

Courts Generally Defer to Reasonable Federal Agency Interpretations

One of the central legal issues involves what's called the "major questions doctrine." Generally speaking, when Congress delegates power to federal agencies to interpret laws and create regulations to enforce those laws, courts are supposed to defer to the agency's interpretation if it is "reasonable." This is called Chevron deference.

You start with what Congress says and, if it's not clear, you look at how the agency interpreted the statute. If the agency's interpretation is reasonable, the agency usually wins.

Unless the agency action involves a "major question."

The Major Questions Doctrine

Although the major question doctrine is not well-defined and has been stated in different ways, a question is generally considered "major" if the agency's action is of "vast economic and political significance." If the answer brings about an "enormous and transformative expansion" in the agency's regulatory authority, Congress must "clearly" give the agency that power.

Like we said — lots of phrases in quotes.

OSHA and the OSH Act

The fight before the Court is whether Congress "clearly" gave OSHA the power to require vaccination-or-masking of 84 million workers. The Biden administration relies on a 1970 law, the Occupational Safety and Health (OSH) Act.

According to the OSH Act, OSHA can issue a regulation on an emergency basis (also known as an emergency temporary standard or ETS) if it is "necessary" to protect employees from a "grave danger." Otherwise, OSHA must go through its ordinary rulemaking process, which takes substantial time and involves a lot of input from the affected industries and the public.

In One Corner, the Biden Administration

The Biden administration contends that COVID-19, now two years into the pandemic, remains a "grave danger" and that the OSH Act "clearly" grants OSHA the power to protect the workforce from it. COVID-19 has killed hundreds of thousands of people in the U.S., infects hundreds of thousands each day, and, although mild in many people, can at least result in hospitalization which, in turn, may overwhelm hospitals and our health care system generally.

In the Other Corner, Opponents

Opponents say not so fast. COVID-19, they say, is not a "grave danger" to large swaths of the workforce, such as employees who work from home or are naturally immune to the virus. Nor, they say, is a rule applying to 84 million workers "necessary." Most of the workforce is already vaccinated or naturally immune to the virus, which itself causes little more than mild illness in the vast majority of those infected.

They further argue that Congress in 1970 could not have "clearly" given OSHA the power to address an unprecedented pandemic in 2020. And if this were a true emergency, OSHA wouldn't have waited two years into the pandemic and a year after the vaccines were available to issue its ETS.

How Will the Supreme Court Rule?

Judges and legal experts disagree on how the court will rule and what the scope of its ruling will be. Whatever the outcome, the Court will likely rule quickly. As things stand, the country is in limbo.

What Should Employers Do?

The bottom line? The mandate or mask-and-testing requirement is in effect for now. So employers, as we suggested, should strongly consider complying.

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