By: Megan Yang
On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an emergency temporary standard that requires businesses with more than 100 employees to implement a mandatory Coronavirus disease 2019 (COVID-19) vaccination policy requiring “employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.” The mandate seeks to minimize the increased risk of exposure to COVID-19 for in-person workers. On January 13, 2022, the Supreme Court blocked the mandate because the Court believed Congress did not give OSHA the power to enact the mandate under the Occupational Safety and Health Act. Many people criticized the ruling because the majority failed to recognize COVID-19 as a workplace hazard.
COVID-19 is a contagious disease caused by the SARS-CoV-2 virus that is transmitted through small airborne particles. The Centers for Disease Control and Prevention (CDC) advised the public to keep 6 feet away from each other to avoid close contact with unknown infected people. In December 2020, the Food and Drug Administration (FDA) issued the Emergency Use Authorization for First COVID-19 Vaccine. The government encouraged people to get Covid-19 vaccines to protect themselves against severe illness and death from COVID-19. The FDA currently supports a 2-dose primary series for individuals 5 years of age and older and a booster dose for individuals who have received the second dose over 6 months.
As vaccination rates increase, many companies asked their employees to come back to the office. At the same time, different new variants emerged with higher infection rates. In order to decrease the risk of workers contacting COVID-19, especially with the highly contagious Omicron variant, on November 5, 2021, OSHA’s Department of Labor issued an emergency standard under Occupational Safety and Health Act requiring businesses with more than 100 employees to adopt a policy requiring all employees to either be vaccinated or wear a mask while working while testing once a week. The Occupational Safety and Health Act allows OSHA to implement an emergency temporary standard if (1) “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) “the emergency standard is necessary to protect employees from such danger.”
The Supreme Court blocked the mandate in (short case name) because the Court believed the scope of the mandate is too broad and went beyond the authority Congress gave to OSHA through the Occupational Safety and Health Act.The Court disagreed with OSHA that COVID-19 is considered a “grave danger” as the Occupational Safety and Health Act intends to cover. The Court believed that even though COVID-19 is a risk in many workplaces, it is not an occupational hazard in most cases Further, the Court regarded COVID-19 as a communicable disease for the majority of workplaces, which has the same universal risk as daily crime and air pollution. While OSHA cannot make a blanket requirement for all workplaces, the Court did note that OSHA has the power to regulate workplaces where employees work closely with COVID-19.
The holding negates the danger presented by COVID-19 and neglects the safety of workers in an in-person working environment. On January 3, 2022, Johns Hopkins University reported 1,082,549 new coronavirus cases in a single day due to the highly contagious Omicron variant. As of February 11, 2022, COVID-19 is responsible for over 900 thousand deaths in the United States. It is impossible to ignore the dangerous impacts of this virus and to treat COVID-19 as a disease with a universal risk. Additionally, COVID-19 poses more risk to unvaccinated people. According to a CDC report, studies showed unvaccinated adults in Los Angeles are 3.6 times more likely to contract COVID-19 and are 23 times more likely to be hospitalized compared to adults who are vaccinated and received a booster. However, in the ruling, the Court chose to ignore this statistical data and likened COVID-19 to a flu in most workplaces. In Florida Peach Growers Association, Inc v. United State Department of Labor, the Fifth Circuit defined grave danger as “the danger of incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health.” Many people have long-term COVID-19 symptoms, like no taste or sensation, fatigue and depression, and permanent damage to the lungs.Additionally, the Court failed to recognize the COVID-19 risk that other professionals may face in their workplaces.Essential workers, other than medical professionals, for example, store cashiers and cleaning workers, also have contact with the public. But unlike medical professionals, they have less access to quality protection equipment to protect them against COVID-19. Essential workers are likely to be exposed to COVID-19 in their workplaces because they don’t have the privilege to work from home. The ruling neglects the risk in industries other than the medical industry.
OSHA withdrew their mandate as a result of the Supreme Court’s decision in [case name]. In the meantime, the Biden Administration is encouraging businesses to voluntarily implement their own vaccine mandate to protect their workers. In other words, business operators must take the initiative to ensure their workers have a safe working environment, putting the safety of employees in large businesses solely in the employers’ hands. In light of the Supreme Court’s failure to protect workers, companies should be proactive and take reasonable protections to create better and safer workplaces in this ongoing pandemic.
 Coronavirus disease (COVID-19), WTO, https://www.who.int/health-topics/coronavirus#tab=tab_1 (last visited Feb. 14, 2022) (stating a contagious disease caused by the SARS-CoV-2 virus can spread through airborne).
 COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 FR 61402-01.
 See Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661, 662-63 (2022) (stating the mandate was too broad and failed to narrow down the scope of the industries included).
 Michelle M. Mello et al., A Look at the Supreme Court Ruling on Vaccination Mandates, Stanford Law School Blog (Jan. 20, 2022), https://law.stanford.edu/2022/01/20/a-look-at-the-supreme-court-ruling-on-vaccination-mandates/.
 Coronavirus disease (COVID-19), WTO, https://www.who.int/health-topics/coronavirus#tab=tab_1 (last visited Feb. 14, 2022).
 Quarantine and Isolation, CDC, https://www.cdc.gov/coronavirus/2019-ncov/your-health/quarantine-isolation.html (last updated Jan. 27, 2022).
 FDA Takes Key Action in Fight Against COVID-19 By Issuing Emergency Use Authorization for First COVID-19 Vaccine, FDA (Dec. 11, 2020), https://www.fda.gov/news-events/press-announcements/fda-takes-key-action-fight-against-covid-19-issuing-emergency-use-authorization-first-covid-19.
 Path out of the Pandemic, White House, https://www.whitehouse.gov/covidplan/(last visited Feb. 14, 2022).
 FDA Authorizes Pfizer-BioNTech COVID-19 Vaccine for Emergency Use in Children 5 through 11 Years of Age, FDA (Oct. 29, 2021), https://www.fda.gov/news-events/press-announcements/fda-authorizes-pfizer-biontech-covid-19-vaccine-emergency-use-children-5-through-11-years-age. Coronavirus (COVID-19) Update: FDA Expands Eligibility for COVID-19 Vaccine Boosters, FDA (Nov. 19. 2021), https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-expands-eligibility-covid-19-vaccine-boosters.
 Omicron Variant: What You Need to Know, CDC, https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html (last updated Feb. 2, 2022).
 COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 FR 61402-01.
 29 U.S.C. §655(c).
 Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661, 662-63 (2022).
 Id. at 665.
 Id. (specifying COVID-19 is considered an occupational hazard to people working in a medical or researching environment with the virus).
 UNITED STATES, Johns Hopkins, https://coronavirus.jhu.edu/region/united-states (last visited Feb 12, 2022).
 Phoebe Danza et al., SARS-CoV-2 Infection and Hospitalization Among Adults Aged ≥18 Years, by Vaccination Status, Before and During SARS-CoV-2 B.1.1.529 (Omicron) Variant Predominance — Los Angeles County, California, November 7, 2021–January 8, 2022, CDC (Feb. 4, 2022) https://www.cdc.gov/mmwr/volumes/71/wr/mm7105e1.htm.
 Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 665 (stating COVID-19 posed universal risk to the public as daily crime and air pollution).
 489 F.2d 120, 132 (5th Cir. 1974) (stating “the danger of incurable, permanent, or fatal consequences to workers” is important when considering whether necessary emergency measures meet a grave danger).
 NIH to study long-term effects of COVID-19 in pregnancy, NIH (Nov. 2, 2021), https://www.nih.gov/news-events/news-releases/nih-study-long-term-effects-covid-19-pregnancy. Panagis Galiatsatos, COVID-19 Lung Damage, Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-does-to-the-lungs (last updated Apr. 12, 2021).
 Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 665 (stating OSHA has the regulatory authority regarding researchers who work with the COVID–19 virus).
 Jimmy O’Donnell, Essential Workers During COVID-19: At Risk and Lacking Union Representation, Brookings (Sep. 3, 2020), https://www.brookings.edu/blog/up-front/2020/09/03/essential-workers-during-covid-19-at-risk-and-lacking-union-representation/ (indicating that many large provided minimal access to PPE).
 Id. (stating low-income workers are less likely to work from home).
 Liz Stark, Biden administration to withdraw Covid-19 vaccination and testing regulation aimed at large businesses, CNN (Jan. 25, 2022), https://www.cnn.com/2022/01/25/politics/vaccine-mandate-osha-withdrawn/index.html.