Public Health Law and Policy in the Wake of NFIB v. OSHA: Probing Emerging Divides in the Supreme Court’s View of Public Health – N.Y.U. Journal of Legislation & Public Policy

By: Ana Santos Rutschman & Ruqaiijah Yearby

March 24, 2022

In early 2022, the Supreme Court struck down an emergency temporary standard enacted by the Occupational Safety and Health Administration. The standard directed large employers (defined as businesses with 100 or more employees) to develop and implement several measures to curb the spread of COVID-19 in the workplace, including the requirement that employees be vaccinated against COVID-19 or submit to regular testing.

In this piece, we explain and critique the majority’s framing of occupational health as wholly separate from public health as a basis for restricting the authority of a federal agency to issue emergency temporary rules to protect workers. We focus our analysis predominantly on two aspects of the majority’s decision and its implications for public health law and policy in years to come. First, we argue that the Supreme Court completely disregards the manifolds aspects of OSHA’s mission, institutional design and legal authority that make it a critical part of the federal public health institutional apparatus. Second, the Supreme Court deploys a reductionist view of public health, improperly excising occupational health from its boundaries and creating a distinction between public health and occupational health that is not only artificial, but also unsupported by theory and longstanding practice.

Background on OSHA’s Temporary Emergency Standard

The Occupational Safety and Health Administration (OSHA) was created in 1970 and operates under the umbrella of the U.S. Department of Labor. It is tasked with the mission to “assure safe and healthful working conditions” for employees.¹ While regulations imposed by OSHA are typically subject to notice-and-comment procedures,² the Occupational Safety and Health Act enables the agency to issue emergency temporary standards without observing these procedures to address situations in which workers are “exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”³ The emergency temporary standard must be “necessary to protect employees from such danger” and takes effect upon publication in the Federal Register.

Pursuant to this authority, OSHA issued an emergency temporary standard on Nov. 5, 2021 to “to protect unvaccinated employees of large employers” against COVID-19. The standard was structured as a choice between two types of vaccination policy: employers could elect to implement a mandatory COVID-19 vaccination policy (subject to the requirements imposed by existing laws, such as the Americans with Disabilities Act); or a policy requiring employees to choose between showing valid proof of vaccination against COVID-19 or undergoing regular testing and wearing a face covering while at work. The standard also imposed additional obligations on covered employers, such as temporarily removing employees from the workplace in cases of positive COVID-19 testing or diagnosis; to enforcing a face covering policy for unvaccinated employees both indoors and when sharing a vehicle with other people for work purposes; and providing paid time to workers getting a COVID-19 vaccines and paid leave to workers experiencing side effects from COVID-19 vaccination. However, employers were not required to support employees with the costs of testing and face covering imposed by the standard, which would likely be paid for by the employees that did not elect to get vaccinated. Employers in violation of the standard would be subject to fines ranging from up to $14,502 (for standard violations) to up to $145,072 (for willful violations). OSHA estimated that implementation of the emerging standard would help prevent over 250,000 hospitalizations and save over 6,500 lives over a period of six months. Roughly 84 million private-sector workers would be covered by the policies prescribed in the standard.

The Road to National Federation of Independent Business et al. v. OSHA

The standard was immediately stayed by the Court of Appeals for the Fifth Circuit, which held that the standard likely exceeded OSHA’s authority under the Act; raised concerns about separation of powers; and was not tailored to the varying risks faced by different types of workers in different types of workplaces.

With several States, trade groups, businesses and other entities mounting separate challenges to OSHA’s COVID-19 standard, litigation was consolidated in the Sixth Circuit in December 2021. In a split decision (8-8), the Court denied a petition for an initial hearing en banc. Separately, a three-judge panel (voting 2-1) granted OSHA’s motion to dissolve the stay.

Challengers of the standard quickly turned to the Supreme Court, which consolidated two applications to stay OSHA’s rule – one from the National Federation of Independent Business, the other from several States (from hereafter NFIB v. OSHA). On January 13, 2022 the Supreme Court issued a per curiam opinion disagreeing with the Sixth Circuit and staying the emergency standard.

In NFIB v. OSHA, the Supreme Court framed OSHA’s actions as going beyond “everyday exercise of federal power”⁴ and characterized the imposition of the standard as a “significant encroachment into the lives—and health—of a vast number of employees.”⁵ The Court then ruled that the imposition of a “broad public health measure” fell outside the scope of the authority granted to OSHA by the Occupational Safety and Health Act, and read the Act as merely giving the agency the power to encompassing only “workplace safety standards.”⁶ As such, and in the absence of a clear authorization from Congress, the emergency temporary standard exceeded OSHA’s power under the Act. The dissent (formed by Justices Breyer, Sotomayor and Kagan) argued that the majority’s distinction effectively created “a limit found no place in the governing statute.”⁷ In the following sections, we focus our analysis on the Court’s ruling within the broader context of the regulation of public health at the federal level and probe the divide articulated by the Court between public and occupational health.

The Court Misunderstands Public Health Regulation at the Federal Level

The regulation of public health has long leaned heavily on the states through exercise of police powers. This is why the bulk of decisions about vaccination policy—from vaccination mandates to the creation of different types of exemptions to mandatory vaccination—are typically made by infra-federal authorities, ranging from state public health authorities to localities. The primacy of the states in the regulation of vaccination policy is not exceptional in our public health ecosystem. The same principles apply to mask mandates or the imposition of quarantine requirements. In addition to adhering to the constitutional precept set forth in the Tenth Amendment (which reserves powers not expressly granted to the federal government to the states), allocating these decisions to the states also reflects the shared view that each state is better positioned to decide how most effectively to prevent and respond to public health problems arising locally.

While many public health interventions needed to prevent and respond to pandemics and epidemics—and especially those related to vaccination policy—are largely designed and implemented at the state level, the role of the federal laws in the regulation of public health has also long been recognized. A constellation of federal legislation has been enacted for over a century pursuant to the Congress’ Commerce Clause authority. The most salient example is perhaps that of the Public Health Service Act, which was expressly designed to enable federal authorities to control the spread of communicable diseases. Some of the legislation enacted by Congress in furtherance of public health goals is not exclusively, or even predominantly, presented in the guise of public health legislation. For instance, the Clean Water Act (arguably seen first and foremost as an environmental law) and the Fair Labor Standards Act (arguably seen first and foremost as a labor law) have come to be understood as integral to the fabric of federal public health legislation.

To be sure, the powers of the federal government in the area of public health regulation are limited, particularly vis-à-vis those of the states. But the federal government does play a salient role, whether in the prevention of, and response to, catastrophic events like a pandemic or a bioterrorism attack, or in the continued pursuit or maintenance of certain health-related goals, even when it does so through laws and actors located outside the U.S. Department of Health and Human Services. Consider, for instance, the role of anti-pollution statutes (facially, environmental laws) in mitigating the detrimental effects of pollution on the population in general; or the role of statutes regulating the workplace (facially, labor and employment laws) in imposing duties on employers to maintain a working environment free of known health and safety hazards for a segment of the population—which, as seen above, encompasses a rather large number of workers.

The discussion of both the role of OSHA and the powers granted to the federal government under the Occupational Safety and Health Act inserts itself within this theme. In NFIB v. OSHA, the Supreme Court indicates that it does not regard the Act as public health legislation, nor OSHA as a public health-related agency. This is partly why the answer to the question of whether Congress has given OSHA the power to impose a vaccinate-or-test rule in response to a pandemic is answered by the majority in the negative. (The other component of this answer, we contend below, is instrumental: if the Court had concluded that the Act directed OSHA to play a role in the regulation of public health—more specifically, the domain(s) of public health that directly relate to the protection of workers—then more stringent vaccination policies would go into effect, which is what the majority is ultimately seeking to avoid.)

The Court adopts a conceptually and institutionally eviscerating approach to federal regulation of public health: OSHA was given the authority to regulate workplace standards, but not public health aspects of the working environment. The majority frames the Occupational Safety and Health Act as a labor and employment law disconnected from the ecosystem formed by public health laws. Similarly, OSHA’s mission and permissible regulations are to be understood as restricted to the context of labor and employment, as if these two concepts—and, more importantly, the realities of working in, or interacting with, the workplace—could be kept aseptically separate from public health threats, goals and other considerations. In the words of the Court: “no provision of the Act addresses public health more generally [as opposed to the regulation of the workplace], which falls outside of OSHA’s sphere of expertise.” The current worldview of the Supreme Court is thus that OSHA has no expertise in public health (only “occupational health,” further discussed below) and that reading the Act as allowing the imposition of a vaccination-or-test on workers would send the agency veering impermissibly towards the broader regulation of public health matters. In the words of the Court: “Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”⁸

In addition to a reductionist reading of public health, for which the Court offers no support from the public health literature and which we address in the following section, this worldview also makes little sense when considering the federal public health apparatus from an institutional and historical perspective. OSHA, while part of the U.S. Department of Labor, has the “health” written into not only its name, but also its statutory authority (the Act instructs OSHA to develop and implement “occupational safety and health standards”).

The Supreme Court also relies on the seemingly historical argument that OSHA has never before been involved in public health regulation at large, including in the context of the response to pandemic and epidemics: “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.”⁹ This is simply not accurate.

Throughout the COVID-19 pandemic OSHA has partnered with the Centers for Disease Control and Prevention (CDC) to issue guidance to protect workers and prevent the spread COVID-19. These guidance were issued as a key component of the federal public health response to mitigate the spread of COVID-19, and were entirely based on the laws and powers of OSHA that require employers among other things, to provide handwashing facilities for workers (Sanitation Standard) and comply with the Respiratory Protection Standard (which requires employers to prevent the spread of airborne hazards in the workplace). And this was not the first time that OSHA implemented CDC recommendations to stop the spread of an infectious disease. In 2009, OSHA issued guidance to enforce CDC recommendations to stop the spread of H1N1 in healthcare institutions. Thus, OSHA has a history of using its statutorily derived powers to address infectious disease outbreaks within the workplace. Consequently, OSHA’s adoption of a vaccine for all workers is simply a continuation of the powers it has used throughout the COVID-19 pandemic as well as during the 2009 H1N1 pandemic. The majority’s approach in NFIB v. OSHA thus disregards the meaning of “health” in the statutory language, as well as the history of OSHA, which make it a full player in the public health space.

One of the hallmarks of public health is the adoption of quick and tailored responses that vary according to challenges posed by a particular outbreak. The credence given to an inapplicable historical context further underscores the unwillingness of the Court to recognize how public health agencies do and must operate.

The Court’s Problematic Public/Occupational Health Divide

A 2013 publication by NIOSH and the CDC, entitled “Workplace Health is Public Health,” notes that “workplace health is an integral part of public health.” The World Health Organization defines occupational health as “an area of work in public health to promote and maintain highest degree of physical, mental and social well-being of workers in all occupations” (emphasis added). Commentators writing across a variety of disciplines routinely echo this view that occupational health is part of public health.¹⁰ If anything, some commentators have called for stronger integration of occupational health within public health frameworks. Others note that occupational health has been viewed as integrating the field of public health since at least the nineteenth century, which is illustrated by OHSA’s role in issuing guidance to prevent the spread of infectious diseases in the workplace during the two most recent pandemics: COVID-19 and H1N1. In stark contrast with expert consensus, the Supreme Court in NFIB v. OSHA states that occupational health is separable from public health, and that OSHA can only regulate issues that are workplace- or occupation-specific.

The majority writes: “That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.”¹¹ The consequences of this exclusionary approach are likely to be dire, as they largely ignore the myriad workplaces or types of employment that escape the scenarios envision by the majority. Nationwide jobs have been associated with increased percentages of COVID-19 deaths Specifically, research showed that working in the health care, transportation, food preparation, cleaning, and service industries was strongly associated with a high risk of contracting COVID-19 and dying. Furthermore, research shows that between 3 to 4% of all COVID-19 deaths and 6 to 8% of all COVID-19 cases in the U.S. are tied to meat and poultry processing plants. Moreover, an April 2021 report showed that workers in California accounted for 87% of the COVID-19 deaths in adults aged 18 to 65. Warehouse workers “had the highest statewide increase in pandemic related deaths (57%),” compared to a 25% increase for those not working. Other California industries with high rates of worker deaths was agriculture (47%), food processing (43%), and nursing homes (39%). Hence, as discussed in Breyer’s dissent, the data shows that workplaces present heightened dangers for the spread of COVID-19, and thus, the vaccine standard is necessary to address the dangers of COVID-19.¹²

The Court further pushes the divide between occupational health and health more generally by carving out a distinction between occupational and non-occupational risks faced by workers: “OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.” 29 U. S. C. §655(b) (emphasis added).”¹³ This view amputates OSHA’s mandate to only regulate occupational risks. However, nothing in the provision cited by the Court (or anywhere else in the law) says that the risks regulated by OSHA have to occupational in nature. Importantly, the Act does not define “health” at all, which seems to indicate that Congress did not intend for this particular law to adopt an ad hoc view of health – especially one that narrows “health” in ways that public health literature, experts, and tradition do not.

Regulatory Options in the Aftermath of NFIB v. OSHA

In this piece we have focused on two aspects of the Supreme Court decision in NFIB v. OSHA – the ones most closely tied to the undermining of operational notions of public health in the federal institutional apparatus. We note, nonetheless, that there might be other avenues for OSHA to regulate—or, at least, attempt to regulate—issues related to the health and safety or workers in the context of the spread of pathogens like the one causing COVID-19. Although the Court’s decision to limit OSHA’s ability to require employers to adopt a vaccination-or-test standard limited OSHA’s ability to combat the workplace spread of COVID-19, OSHA still has the power under its Respiratory Protection Standard to adopt an airborne infectious disease rule that would require employers to conduct a worksite hazard assessment to determine how an airborne infectious disease can spread within the worksite and adopt specific measures to limit the spread of the airborne infectious disease in the worksite.

The respiratory protection standard offers the agency a potential, albeit narrow, pathway in the context of public health crises involving a sub-set of emerging infectious diseases. Should the next public health crisis be triggered by a pathogen that does not cause respiratory disease, OSHA may have few, if any, regulatory options under NFIB v. OSHA. This further signals a departure from holistic approaches to public health (often known as social-ecological approaches) and a turn towards a patchwork and reductionist regulatory approach—one that is scarcely compatible with the domestic and transnational spread of disease in the age of pandemics.

Ana Santos Rutschman is Assistant Professor of Law at Saint Louis University School of Law, and incoming Professor of Law, Villanova University Charles Widger School of Law.

Ruqaiijah Yearby is Professor of Law at Saint Louis University School of Law and incoming Kara Trott Professor of Law at The Ohio State University Moritz College of Law.

Suggested Citation: Ana Santos Rutschman & Ruqaiijah Yearby, Public Health Law and Policy in the Wake of NFIB v. OSHA: Probing Emerging Divides in the Supreme Court’s View of Public Health, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2022).

1
29 U.S.C. §651(b) (1970).
2
29 U.S.C. §655(b) (1970).
3
29 U.S.C. §655(c) (1970).
4
NFIB v. OSHA, 595 U.S. ___,___ (2022) (slip op., at 5).
5
Id. at 5-6.
6
Id. at 6.
7
NFIB v. OSHA, 595 U.S. ___, ___ (2022) (Breyer, Sotomayor, and Kagan, J.J., dissenting) (slip. op., at 7).
8
NFIB v. OSHA, slip op., at 7.
9
Id. at 8.
10
See, e.g., Ana García et al., La Plena (y Necesaria) Integración de la Salud Laboral en la Salud Pública [The Full (and Necessary) Integration of Occupational Health into Public Health] 95 Revista Espanola de Salud Publica (2021); Bernard Healey & Kenneth Walker, Introduction to Occupational Health in Public Health Practice (2009); Marc Schenker, A Global Perspective of Migration and Occupational Health, 53 Am. J. Ind. Med. 329 (2010); Beth Baker et al., Occupational and Environmental Medicine: Public Health and Medicine in the Workplace, 110(5) Am. J. Pub. Health 636 (2020).
11
NFIB v. OSHA, slip op., at 7.
12
Id. at 5 (Breyer, Sotomayor, and Kagan, J.J., dissenting).
13
Id. at 7.