The NCSL Blog


By Lisa Soronen

In National Federation of Independent Businesses v. Department of Labor, the U.S. Supreme Court temporarily disallowed the Occupational Safety and Health Administration’s (OSHA) emergency rule, which requires those who work for employers with more than 100 employees to be vaccinated.

US Supreme CourtEmployers instead could require unvaccinated employees to be tested weekly for COVID-19 and wear a mask.

In Biden v. Missouri, the court allowed an interim final rule requiring health care facilities that receive Medicare and Medicaid funding to ensure their staff are vaccinated against COVID-19 to go into effect temporarily while litigation in the lower courts continues.

In NFIB v. DOL, the court concluded that those challenging the vaccine mandate are likely to succeed in their claim that Congress failed to clearly authorize the secretary of Labor to impose such a mandate. The act that created OSHA allows for temporary emergency standards when it is “necessary” to protect employees exposed to “grave danger” from “exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”

According to the court, the act allows the secretary of Labor to “set workplace safety standards, not broad public health measures,” and the vaccine mandate is a broad public health measure. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.

“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.”

Justices Stephen Breyer, Sonia Sotomayor and Elise Kagan dissented.

In Biden v. Missouri, the court concluded that the secretary of Health and Human Services didn’t exceed his statutory authority in requiring facilities that receive Medicare and Medicaid funding to ensure their employees are vaccinated. 

Congress authorized the secretary to promulgate “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution,” as a condition of allowing health care facilities to participate in Medicare and Medicaid.

The court reasoned: “The rule . . . fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the ‘very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.”

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented in Biden v. Missouri.

The opinions in both cases are unauthored. The court’s opinions in these cases aren’t final determinations of the legal merits of the issues presented. Instead, the opinions disallow the vaccine-or-test rule and allow the health care facility rule to go into effect temporarily while litigation continues over these issues in the lower courts.

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.