SUPREME COURT OF THE UNITED STATES
_________________
Nos. 21A244 and 21A247
_________________
NATIONAL FEDERATION OF INDEPENDENT
BUSINESS, et al., APPLICANTS
21A244
v.
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION, et al.
OHIO, et al., APPLICANTS
21A247
v.
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION, et al.
on applications for stays
[January 13, 2022]
Justice Breyer, Justice Sotomayor, and Justice
Kagan, dissenting.
Every day, COVID–19 poses grave dangers to the
citizens of this country—and particularly, to its workers. The
disease has by now killed almost 1 million Americans and
hospitalized almost 4 million. It spreads by person-to-person
contact in confined indoor spaces, so causes harm in nearly all
workplace environments. And in those environments, more than any
others, individuals have little control, and therefore little
capacity to mitigate risk. COVID–19, in short, is a menace in work
settings. The proof is all around us: Since the disease’s onset,
most Americans have seen their workplaces transformed.
So the administrative agency charged with
ensuring health and safety in workplaces did what Congress
commanded it to: It took action to address COVID–19’s continuing
threat in those spaces. The Occupational Safety and Health
Administration (OSHA) issued an emergency temporary standard
(Standard), requiring
either vaccination
or masking
and testing, to protect American workers. The Standard falls within
the core of the agency’s mission: to “protect employees” from
“grave danger” that comes from “new hazards” or exposure to harmful
agents. 29 U. S. C. §655(c)(1). OSHA estimates—and there
is no ground for disputing—that the Standard will save over 6,500
lives and prevent over 250,000 hospitalizations in six months’
time. 86 Fed. Reg. 61408 (2021).
Yet today the Court issues a stay that prevents
the Standard from taking effect. In our view, the Court’s order
seriously misapplies the applicable legal standards. And in so
doing, it stymies the Federal Government’s ability to counter the
unparalleled threat that COVID–19 poses to our Nation’s workers.
Acting outside of its competence and without legal basis, the Court
displaces the judgments of the Government officials given the
responsibility to respond to workplace health emergencies. We
respectfully dissent.
I
In 1970, Congress enacted the Occupational
Safety and Health Act (Act) “to assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources,” including “by
developing innovative methods, techniques, and approaches for
dealing with occupational safety and health problems.” 29
U. S. C. §§651(b), (b)(5). To that end, the Act empowers
OSHA to issue “mandatory occupational safety and health standards
applicable to businesses affecting interstate commerce.”
§651(b)(3). Still more, the Act requires OSHA to issue “an
emergency temporary standard to take immediate effect upon
publication in the Federal Register if [the agency] determines
(A) that employees are exposed to grave danger from exposure
to substances or agents determined to be toxic or physically
harmful or from new hazards, and (B) that such emergency
standard is necessary to protect employees from such danger.”
§655(c)(1).
Acting under that statutory command, OSHA
promulgated the emergency temporary standard at issue here. The
Standard obligates employers with at least 100 employees to require
that an employee either (1) be vaccinated against COVID–19 or
(2) take a weekly COVID–19 test and wear a mask at work. 86
Fed. Reg. 61551–61553. The Standard thus encourages vaccination,
but permits employers to adopt a masking-or-testing policy instead.
(The majority obscures this choice by insistently calling the
policy a “vaccine mandate.”
Ante, at 1, 4, 7, 8.) Further,
the Standard does not apply in a variety of settings. It exempts
employees who are at a reduced risk of infection because they work
from home, alone, or outdoors. See 86 Fed. Reg. 61551. It makes
exceptions based on religious objections or medical necessity. See
id., at 61552. And the Standard does not constrain any
employer able to show that its “conditions, practices, means,
methods, operations, or processes” make its workplace equivalently
“safe and healthful.” 29 U. S. C. §655(d). Consistent
with statutory requirements, the Standard lasts only six months.
See §655(c)(3).
Multiple lawsuits challenging the Standard were
filed in the Federal Courts of Appeals. The applicants asked the
courts to stay the Standard’s implementation while their legal
challenges were pending. The lawsuits were consolidated in the
Court of Appeals for the Sixth Circuit. See 28 U. S. C.
§2112(a)(3). That court dissolved a stay previously entered, thus
allowing the Standard to take effect. See
In re MCP No.
165, 2021 WL 5989357, ___ F. 4th ___ (2021). The
applicants now ask this Court to stay the Standard for the duration
of the litigation. Today, the Court grants that request,
contravening clear legal principles and itself causing grave danger
to the Nation’s workforce.
II
The legal standard governing a request for
relief pending appellate review is settled. To obtain that relief,
the applicants must show: (1) that their “claims are likely to
prevail,” (2) “that denying them relief would lead to
irreparable injury,” and (3) “that granting relief would not
harm the public interest.”
Roman Catholic Diocese of
Brooklyn v.
Cuomo, 592 U. S. ___, ___ (2020)
(
per curiam) (slip op., at 2). Moreover, because the
applicants seek judicial intervention that the Sixth Circuit
withheld below, this Court should not issue relief unless the
applicants can establish that their entitlement to relief is
“indisputably clear.”
South Bay United Pentecostal Church v.
Newsom, 590 U. S. ___, ___ (2020) (Roberts, C. J.,
concurring in denial of application for injunctive relief )
(slip op., at 2) (internal quotation marks omitted). None of these
requirements is met here.
III
A
The applicants are not “likely to prevail”
under any proper view of the law. OSHA’s rule perfectly fits the
language of the applicable statutory provision. Once again, that
provision commands—not just enables, but commands—OSHA to issue an
emergency temporary standard whenever it determines “(A) that
employees are exposed to grave danger from exposure to substances
or agents determined to be toxic or physically harmful or from new
hazards, and (B) that such emergency standard is necessary to
protect employees from such danger.” 29 U. S. C.
§655(c)(1). Each and every part of that provision demands that, in
the circumstances here, OSHA act to prevent workplace harm.
The virus that causes COVID–19 is a “new hazard”
as well as a “physically harmful” “agent.” Merriam-Webster’s
Collegiate Dictionary 572 (11th ed. 2005) (defining “hazard” as a
“source of danger”);
id., at 24 (defining “agent” as a
“chemically, physically, or biologically active principle”);
id., at 1397 (defining “virus” as “the causative agent of an
infectious disease”).
The virus also poses a “grave danger” to
millions of employees. As of the time OSHA promulgated its rule,
more than 725,000 Americans had died of COVID–19 and millions more
had been hospitalized. See 86 Fed. Reg. 61408, 61424; see also CDC,
COVID Data Tracker Weekly Review: Interpretive Summary for Nov. 5,
2021 (Jan. 12, 2022),
https://cdc.gov/coronavirus/2019–ncov/covid-data/covidview/
past-reports/11052021.html. Since then, the disease has continued
to work its tragic toll. In the last week alone, it has caused, or
helped to cause, more than 11,000 new deaths. See CDC, COVID Data
Tracker (Jan. 12, 2022), https://
covid.cdc.gov/covid-data-tracker/#cases_deathsinlast7days. And
because the disease spreads in shared indoor spaces, it presents
heightened dangers in most workplaces. See 86 Fed. Reg. 61411,
61424.
Finally, the Standard is “necessary” to address
the danger of COVID–19. OSHA based its rule, requiring either
testing and masking or vaccination, on a host of studies and
government reports showing why those measures were of unparalleled
use in limiting the threat of COVID–19 in most workplaces. The
agency showed, in meticulous detail, that close contact between
infected and uninfected individuals spreads the disease; that
“[t]he science of transmission does not vary by industry or by type
of workplace”; that testing, mask wearing, and vaccination are
highly effective—indeed, essential—tools for reducing the risk of
transmission, hospitalization, and death; and that unvaccinated
employees of all ages face a substantially increased risk from
COVID–19 as compared to their vaccinated peers.
Id., at
61403, 61411–61412, 61417–61419, 61433–61435, 61438–61439. In
short, OSHA showed that no lesser policy would prevent as much
death and injury from COVID–19 as the Standard would.
OSHA’s determinations are “conclusive if
supported by substantial evidence.” 29 U. S. C.
§655(f ). Judicial review under that test is deferential, as
it should be. OSHA employs, in both its enforcement and health
divisions, numerous scientists, doctors, and other experts in
public health, especially as it relates to work environments. Their
decisions, we have explained, should stand so long as they are
supported by “ ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’ ”
American Textile Mfrs. Institute, Inc. v.
Donovan,
452 U.S.
490, 522 (1981) (quoting
Universal Camera Corp. v.
NLRB,
340 U.S.
474, 477 (1951)). Given the extensive evidence in the record
supporting OSHA’s determinations about the risk of COVID–19 and the
efficacy of masking, testing, and vaccination, a court could not
conclude that the Standard fails substantial-evidence review.
B
The Court does not dispute that the statutory
terms just discussed, read in the ordinary way, authorize this
Standard. In other words, the majority does not contest that
COVID–19 is a “new hazard” and “physically harmful agent”; that it
poses a “grave danger” to employees; or that a testing and masking
or vaccination policy is “necessary” to prevent those harms.
Instead, the majority claims that the Act does not “plainly
authorize[ ]” the Standard because it gives OSHA the power to
“set
workplace safety standards” and COVID–19 exists both
inside and outside the workplace.
Ante, at 6. In other
words, the Court argues that OSHA cannot keep workplaces safe from
COVID–19 because the agency (as it readily acknowledges) has no
power to address the disease outside the work setting.
But nothing in the Act’s text supports the
majority’s limitation on OSHA’s regulatory authority. Of course,
the majority is correct that OSHA is not a roving public health
regulator, see
ante, at 6–7: It has power only to protect
employees from workplace hazards. But as just explained, that is
exactly what the Standard does. See
supra, at 5–6. And the
Act requires nothing more: Contra the majority, it is indifferent
to whether a hazard in the workplace is also found elsewhere. The
statute generally charges OSHA with “assur[ing] so far as possible
. . . safe and healthful working conditions.” 29
U. S. C. §651(b). That provision authorizes regulation to
protect employees from all hazards present in the workplace—or, at
least, all hazards in part created by conditions there. It does not
matter whether those hazards also exist beyond the workplace walls.
The same is true of the provision at issue here demanding the
issuance of temporary emergency standards. Once again, that
provision kicks in when employees are exposed in the workplace to
“new hazards” or “substances or agents” determined to be
“physically harmful.” §655(c)(1). The statute does not require that
employees are exposed to those dangers only while on the workplace
clock. And that should settle the matter. When Congress “enact[s]
expansive language offering no indication whatever that the statute
limits what [an agency] can” do, the Court cannot “impos[e] limits
on an agency’s discretion that are not supported by the text.”
Little Sisters of the Poor Saints Peter and Paul Home v.
Pennsylvania, 591 U. S. ___, ___ (2020) (slip op., at
16) (alteration and internal quotation marks omitted). That is what
the majority today does—impose a limit found no place in the
governing statute.
Consistent with Congress’s directives, OSHA has
long regulated risks that arise both inside and outside of the
workplace. For example, OSHA has issued, and applied to nearly all
workplaces, rules combating risks of fire, faulty electrical
installations, and inadequate emergency exits—even though the
dangers prevented by those rules arise not only in workplaces but
in many physical facilities (
e.g., stadiums, schools,
hotels, even homes). See 29 CFR §1910.155 (2020) (fire);
§§1910.302–1910.308 (electrical installations); §§1910.34–1910.39
(exit routes). Similarly, OSHA has regulated to reduce risks from
excessive noise and unsafe drinking water—again, risks hardly
confined to the workplace. See §1910.95 (noise); §1910.141 (water).
A biological hazard—here, the virus causing COVID–19—is no
different. Indeed, Congress just last year made this clear. It
appropriated $100 million for OSHA “to carry out COVID–19 related
worker protection activities” in work environments of all kinds.
American Rescue Plan Act of 2021, Pub. L. 117–2, 135 Stat. 30. That
legislation refutes the majority’s view that workplace exposure to
COVID–19 is somehow not a workplace hazard. Congress knew—and
Congress said—that OSHA’s responsibility to mitigate the harms of
COVID–19 in the typical workplace do not diminish just because the
disease also endangers people in other settings.
That is especially so because—as OSHA amply
established—COVID–19 poses special risks in most workplaces, across
the country and across industries. See 86 Fed. Reg. 61424 (“The
likelihood of transmission can be exacerbated by common
characteristics of many workplaces”). The majority ignores these
findings, but they provide more-than-ample support for the
Standard. OSHA determined that the virus causing COVID–19 is
“readily transmissible in workplaces because they are areas where
multiple people come into contact with one another, often for
extended periods of time.”
Id., at 61411. In other words,
COVID–19 spreads more widely in workplaces than in other venues
because more people spend more time together there. And critically,
employees usually have little or no control in those settings.
“[D]uring the workday,” OSHA explained, “workers may have little
ability to limit contact with coworkers, clients, members of the
public, patients, and others, any one of whom could represent a
source of exposure to” the virus.
Id., at 61408. The agency
backed up its conclusions with hundreds of reports of workplace
COVID–19 outbreaks—not just in cheek-by-jowl settings like factory
assembly lines, but in retail stores, restaurants, medical
facilities, construction areas, and standard offices.
Id.,
at 61412–61416. But still, OSHA took care to tailor the Standard.
Where it could exempt work settings without exposing employees to
grave danger, it did so. See
id., at 61419–61420;
supra, at 3. In sum, the agency did just what the Act told
it to: It protected employees from a grave danger posed by a new
virus as and where needed, and went no further. The majority, in
overturning that action, substitutes judicial diktat for reasoned
policymaking.
The result of its ruling is squarely at odds
with the statutory scheme. As shown earlier, the Act’s explicit
terms authorize the Standard. See
supra, at 4–6. Once again,
OSHA must issue an emergency standard in response to new hazards in
the workplace that expose employees to “grave danger.” §655(c)(1);
see
supra, at 2–4. The entire point of that provision is to
enable OSHA to deal with emergencies—to put into effect the new
measures needed to cope with new workplace conditions. The enacting
Congress of course did not tell the agency to issue this Standard
in response to this COVID–19 pandemic—because that Congress could
not predict the future. But that Congress did indeed want OSHA to
have the tools needed to confront emerging dangers (including
contagious diseases) in the workplace. We know that, first and
foremost, from the breadth of the authority Congress granted to
OSHA. And we know that because of how OSHA has used that authority
from the statute’s beginnings—in ways not dissimilar to the action
here. OSHA has often issued rules applying to all or nearly all
workplaces in the Nation, affecting at once many tens of millions
of employees. See,
e.g., 29 CFR §1910.141. It has previously
regulated infectious disease, including by facilitating
vaccinations. See §1910.1030(f ). And it has in other contexts
required medical examinations and face coverings for employees. See
§§1910.120(q)(9)(i), 1910.134. In line with those prior actions,
the Standard here requires employers to ensure testing and masking
if they do not demand vaccination. Nothing about that measure is so
out-of-the-ordinary as to demand a judicially created exception
from Congress’s command that OSHA protect employees from grave
workplace harms.
If OSHA’s Standard is far-reaching—applying to
many millions of American workers—it no more than reflects the
scope of the crisis. The Standard responds to a workplace health
emergency unprecedented in the agency’s history: an infectious
disease that has already killed hundreds of thousands and sickened
millions; that is most easily transmitted in the shared indoor
spaces that are the hallmark of American working life; and that
spreads mostly without regard to differences in occupation or
industry. Over the past two years, COVID–19 has affected—indeed,
transformed—virtually every workforce and workplace in the Nation.
Employers and employees alike have recognized and responded to the
special risks of transmission in work environments. It is perverse,
given these circumstances, to read the Act’s grant of emergency
powers in the way the majority does—as constraining OSHA from
addressing one of the gravest workplace hazards in the agency’s
history. The Standard protects untold numbers of employees from a
danger especially prevalent in workplace conditions. It lies at the
core of OSHA’s authority. It is part of what the agency was built
for.
IV
Even if the merits were a close question—which
they are not—the Court would badly err by issuing this stay. That
is because a court may not issue a stay unless the balance of harms
and the public interest support the action. See
Trump v.
International Refugee Assistance Project, 582 U. S.
___, ___ (2017) (
per curiam) (slip op., at 10) (“Before
issuing a stay, it is ultimately necessary to balance the
equities—to explore the relative harms” and “the interests of the
public at large” (alterations and internal quotation marks
omitted));
supra, at 4. Here, they do not. The lives and
health of the Nation’s workers are at stake. And the majority
deprives the Government of a measure it needs to keep them
safe.
Consider first the economic harms asserted in
support of a stay. The employers principally argue that the
Standard will disrupt their businesses by prompting hundreds of
thousands of employees to leave their jobs. But OSHA expressly
considered that claim, and found it exaggerated. According to OSHA,
employers that have implemented vaccine mandates have found that
far fewer employees actually quit their jobs than threaten to do
so. See 86 Fed. Reg. 61474–61475. And of course, the Standard does
not impose a vaccine mandate; it allows employers to require only
masking and testing instead. See
supra, at 3. In addition,
OSHA noted that the Standard would provide employers with some
countervailing economic benefits. Many employees, the agency
showed, would be more likely to stay at or apply to an employer
complying with the Standard’s safety precautions. See 86 Fed. Reg.
61474. And employers would see far fewer work days lost from
members of their workforces calling in sick. See
id., at
61473–61474. All those conclusions are reasonable, and entitled to
deference.
More fundamentally, the public interest here—the
interest in protecting workers from disease and death—overwhelms
the employers’ alleged costs. As we have said, OSHA estimated that
in six months the emergency standard would save over 6,500 lives
and prevent over 250,000 hospitalizations. See
id., at
61408. Tragically, those estimates may prove too conservative.
Since OSHA issued the Standard, the number of daily new COVID–19
cases has risen tenfold. See CDC, COVID Data Tracker (Jan. 12,
2022), https://covid.cdc.gov/covid-data-tracker/#trends_ dailycases
(reporting a 7-day average of 71,453 new daily cases on Nov. 5,
2021, and 751,125 on Jan. 10, 2022). And the number of
hospitalizations has quadrupled, to a level not seen since the
pandemic’s previous peak. CDC, COVID Data Tracker (Jan. 12, 2022),
https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions
(reporting a 7-day average of 5,050 new daily hospital admissions
on Nov. 5, 2021, and 20,269 on Jan. 10, 2022). And as long as the
pandemic continues, so too does the risk that mutations will
produce yet more variants—just as OSHA predicted before the rise of
Omicron. See 86 Fed. Reg. 61409 (warning that high transmission and
insufficient vaccination rates could “foster the development of new
variants that could be similarly, or even more, disruptive” than
those then existing). Far from diminishing, the need for broadly
applicable workplace protections remains strong, for all the many
reasons OSHA gave. See
id., at 61407–61419, 61424,
61429–61439, 61445–61447.
These considerations weigh decisively against
issuing a stay. This Court should decline to exercise its equitable
discretion in a way that will—as this stay will—imperil the lives
of thousands of American workers and the health of many more.
* * *
Underlying everything else in this dispute is
a single, simple question: Who decides how much protection, and of
what kind, American workers need from COVID–19? An agency with
expertise in workplace health and safety, acting as Congress and
the President authorized? Or a court, lacking any knowledge of how
to safeguard workplaces, and insulated from responsibility for any
damage it causes?
Here, an agency charged by Congress with
safeguarding employees from workplace dangers has decided that
action is needed. The agency has thoroughly evaluated the risks
that the disease poses to workers across all sectors of the
economy. It has considered the extent to which various policies
will mitigate those risks, and the costs those policies will
entail. It has landed on an approach that encourages vaccination,
but allows employers to use masking and testing instead. It has
meticulously explained why it has reached its conclusions. And in
doing all this, it has acted within the four corners of its
statutory authorization—or actually here, its statutory mandate.
OSHA, that is, has responded in the way necessary to alleviate the
“grave danger” that workplace exposure to the “new hazard[ ]”
of COVID–19 poses to employees across the Nation. 29
U. S. C. §655(c)(1). The agency’s Standard is informed by
a half century of experience and expertise in handling workplace
health and safety issues. The Standard also has the virtue of
political accountability, for OSHA is responsible to the President,
and the President is responsible to—and can be held to account
by—the American public.
And then, there is this Court. Its Members are
elected by, and accountable to, no one. And we “lack[ ] the
background, competence, and expertise to assess” workplace health
and safety issues.
South Bay United Pentecostal Church, 590
U. S., at ___ (opinion of Roberts, C. J.) (slip op., at
2). When we are wise, we know enough to defer on matters like this
one. When we are wise, we know not to displace the judgments of
experts, acting within the sphere Congress marked out and under
Presidential control, to deal with emergency conditions. Today, we
are not wise. In the face of a still-raging pandemic, this Court
tells the agency charged with protecting worker safety that it may
not do so in all the workplaces needed. As disease and death
continue to mount, this Court tells the agency that it cannot
respond in the most effective way possible. Without legal basis,
the Court usurps a decision that rightfully belongs to others. It
undercuts the capacity of the responsible federal officials, acting
well within the scope of their authority, to protect American
workers from grave danger.