NFIB v. OSHA

P R E L I M I N A R Y P R I N T
Volume 595 U. S. Part 1
Pages 109–139
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
January 13, 2022
REBECCA A. WOMELDORF
reporter of decisions
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109
Syllabus
NATIONAL FEDERATION OF INDEPENDENT
BUSINESS
et al. v. DEPARTMENT OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, et al.
on applications for stays
No. 21A244. Argued January 7, 2022—Decided January 13, 2022*
The Occupational Safety and Health Administration enforces occupational
safety and health standards “reasonably necessary or appropriate to
provide safe or healthful employment” as promulgated by the Secretary
of Labor. 29 U. S. C. §§ 652(8), 655(b). On November 5, 2021, pursuant
to the Secretary's statutory authority to enact “emergency temporary
standards” that may “take immediate effect upon publication in the Fed-
eral Register,” § 655(c)(1), OSHA published a COVID–19 vaccine man-
date requiring most employers with at least 100 employees to “develop,
implement, and enforce a mandatory COVID–19 vaccination policy.” 86
Fed. Reg. 61402. The regulation draws no distinctions based on either
industry or risk of exposure to COVID–19. Unvaccinated employees
who do not comply with OSHA's rule must be “removed from the work-
place.” Id., at 61532. And employers who violate the mandate may
face hefty fnes. 29 CFR § 1903.15(d). Numerous petitions seeking re-
view of OSHA's vaccine mandate were fled across the country by scores
of parties—including States, businesses, trade groups, and nonproft or-
ganizations—and those cases were consolidated in the Sixth Circuit for
resolution. See 28 U. S. C. § 2112(a). Prior to consolidation, the Fifth
Circuit stayed OSHA's rule pending further judicial review, based on its
conclusion that the mandate likely exceeded OSHA's statutory authority,
raised separation-of-powers concerns in the absence of a clear delegation
from Congress, and was not properly tailored to the risks facing differ-
ent types of workers and workplaces. BST Holdings, L.L.C. v. Occupa-
tional Safety and Health Admin., 17 F. 4th 604. A split panel of the
Sixth Circuit dissolved the Fifth Circuit's stay, holding that OSHA's
mandate was likely consistent with the agency's statutory and consti-
tutional authority. See In re MCP No. 165, 21 F. 4th 357. Subse-
quently, numerous applications were fled in this Court requesting a
*Together with No. 21A247, Ohio et al. v. Department of Labor, Occupa-
tional Safety and Health Administration, et al., also on application for
stay.

110 N
ATIONAL FEDERATION OF INDEPENDENT
BUSINESS v. OSHA
Syllabus
stay of OSHA's emergency standard. The Court consolidated two of
those
applications—one from the National Federation of Independent
Business, and one from a coalition of States—and heard expedited
argument.
Held: Because applicants are likely to succeed on their claim that the Sec-
retary lacked authority to impose the vaccine mandate, the applications
for stays are granted. Administrative agencies are creatures of statute
and possess only the authority that Congress has provided. “We expect
Congress to speak clearly when authorizing an agency to exercise pow-
ers of vast economic and political signifcance.” Alabama Assn. of Re-
altors v. Department of Health and Human Servs., 594 U. S. –––, –––
(per curiam) (internal quotation marks omitted). Here, the Act does
not plainly authorize the Secretary's vaccine mandate. The text of the
Act that created OSHA repeatedly makes clear that the agency is
charged with regulating “occupational” hazards and the safety and
health of “employees.” See, e. g., 29 U. S. C. §§ 652(8), 654(a)(2), 655(b)–
(c). The Act empowers the Secretary to set workplace safety stand-
ards, not broad public health measures, and its provisions typically
speak to hazards that employees face at work. See, e. g., §§ 651, 653,
657. The risk of contracting COVID–19 is a risk that occurs in many
workplaces but it is not an occupational hazard in most. Permitting
OSHA to regulate the kind of universal risk posed by COVID–19—
which is no different from many day-to-day dangers that all face—would
signifcantly expand OSHA's regulatory authority without clear congres-
sional authorization. Further, imposing a vaccine mandate on 84 mil-
lion Americans in response to a worldwide pandemic is strikingly unlike
other workplace regulations that OSHA has typically imposed. That is
not to say OSHA lacks authority to regulate occupation-specifc risks
related to COVID–19 when the virus poses a special danger because of
the particular features of an employee's job or workplace. But OSHA's
indiscriminate approach here takes on the character of a general public
health measure, rather than an “occupational safety or health standard.”
§ 655(b). No clear legislative support exists for OSHA's mandate, and
the absence of historical precedent for it provides a “telling indication”
that the mandate extends beyond the agency's legitimate reach. Free
Enterprise Fund v. Public Company Accounting Oversight Bd., 561
U. S. 477, 505.
The equities do not justify withholding interim relief. It is not the
role of the Court to weigh tradeoffs among the competing interests al-
leged here; that is the responsibility of those chosen by the people
through democratic processes. Congress has given OSHA the power
to regulate occupational dangers, but it has not given that agency the
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as: 595 U. S. 109 (2022)
111
Syllabus
power to regulate public health more broadly as the vaccine mandate
does
here.
Applications for stays granted.
Scott A. Keller argued the cause for applicants in No.
21A244.
Benjamin M. Flowers, Solicitor General of Ohio, argued
the cause for applicants in No. 21A247.
Solicitor General Prelogar argued the cause for respond-
ents in both cases.†
†Briefs of amici curiae urging the denial of the emergency applications
for stay of the Occupational Safety and Health Administration's emergency
temporary standard in both cases were fled for Alsco, Inc., by David P.
Billings; for the American Federation of Labor and Congress of Industrial
Organizations by Randy Rabinowitz, Harold Craig Becker, Andrew D.
Roth, Peter J. Ford, Nicole Berner, Victoria L. Bor, Donald J. Siegel,
Keith R. Bolek, Ellen Boardman, David A. Rosen feld, and Irwin Aron-
son; for the American Medical Association et al. by Rachel L. Fried, Jes-
sica Anne Morton, JoAnn Kintz, and Sean A. Lev; for the Constitutional
Accountability Center by Elizabeth B. Wydra and Brianne J. Gorod; for
Former OSHA Administrators Charles Jeffress et al. by Scott L. Nelson
and Allison M. Zieve; for the National Disability Rights Network et al.
by Agatha M. Cole; for the National Employment Lawyers Association
et al. by Michael T. Anderson; and for the Small Business Majority et al.
by Richard A. Koffman.
Briefs of amici curiae urging the grant of the emergency applications
for stay of the Occupational Safety and Health Administration's emergency
temporary standard in both cases were fled for the State of Ohio et al. by
Dave Yost, Attorney General of Ohio, Benjamin M. Flowers, Solicitor Gen-
eral, and May Mailman, Mathura Sridharan, and John Rockenbach, Dep-
uty Solicitors General, and by the Attorneys General and other offcials for
their respective States as follows: Steve Marshall of Alabama, Edmund G.
LaCour, Jr., Solicitor General, and Thomas A. Wilson, Deputy Solicitor
General, Treg R. Taylor of Alaska and Charles E. Brasington, Assistant
Attorney General, Mark Brnovich of Arizona, Brunn W. Roysden IV, So-
licitor General, and Drew C. Ensign, Deputy Solicitor General, Leslie Rut-
ledge of Arkansas, Nicholas J. Bronni, Solicitor General, and Vincent M.
Wagner, Deputy Solicitor General, Ashley Moody of Florida, Henry C.
Whitaker, Solicitor General, Daniel W. Bell, Chief Deputy Solicitor Gen-
eral, Evan Ezray and Jason H. Hilborn, Deputy Solicitors General, James
H. Percival, Deputy Attorney General, and Natalie P. Christmas, Assist-

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112 N
ATIONAL FEDERATION OF INDEPENDENT
BUSINESS v. OSHA
Per Curiam
Per Curiam.
The
Secretary of Labor, acting through the Occupational
Safety and Health Administration, recently enacted a vaccine
ant Attorney General, Christopher M. Carr of Georgia, Stephen J. Pet-
rany, Solicitor General, and Ross W. Bergethon and Drew F. Waldbeser,
Deputy Solicitors General, Lawrence G. Wasden of Idaho, Brian Kane,
Chief Deputy Attorney General, and Leslie M. Hayes and Megan A. Lar-
rondo, Deputy Attorneys General, Theodore E. Rokita of Indiana, Thomas
M. Fisher, Solicitor General, and Julia C. Payne and Melinda R. Holmes,
Deputy Attorneys General, Jeffrey S. Thompson, Solicitor General of Iowa,
and Samuel P. Langholz, Assistant Solicitor General, Derek Schmidt of
Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, and Shannon
Grammel, Deputy Solicitor General, Daniel Cameron of Kentucky, Victor
B. Maddox, and Christopher L. Thacker, Jeff Landry of Louisiana, Eliza-
beth B. Murrill, Solicitor General, Joseph S. St. John, Deputy Solicitor
General, and Josiah Kollmeyer and Morgan Brungard, Assistant Solici-
tors General, Lynn Fitch of Mississippi, Whitney H. Lipscomb, Deputy
Attorney General, Scott G. Stewart, Solicitor General, and Justin L. Ma-
theny and John V. Coghlan, Deputy Solicitors General, Eric S. Schmitt of
Missouri and D. John Sauer, Solicitor General, Austin Knudsen of Mon-
tana, Kristin Hansen, David M. S. Dewhirst, Solicitor General, and Chris-
tian B. Corrigan, Assistant Solicitor General, Douglas J. Peterson of Ne-
braska and James A. Campbell, Solicitor General, John M. Formella of
New Hampshire and Anthony J. Galdieri, Solicitor General, Wayne Sten-
eh jem of North Dakota and Matthew A. Sagsveen, Solicitor General, John
M. O'Connor of Oklahoma and Mithun Mansinghani, Solicitor General,
Alan Wilson of South Carolina, Robert D. Cook, Solicitor General, J.
Emory Smith, Jr., Deputy Solicitor General, and Thomas T. Hydrick, As-
sistant Deputy Solicitor General, Jason R. Ravnsborg of South Dakota
and David M. McVey, Assistant Attorney General, Herbert H. Slatery III
of Tennessee, Ken Paxton of Texas, Brent Webster, First Assistant Attor-
ney General, Aaron F. Reitz, Deputy Attorney General, Judd E. Stone II,
Solicitor General, Lanora C. Pettit, Principal Deputy Solicitor General,
William F. Cole and Ryan S. Baasch, Assistant Solicitors General, and
Leif A. Olson, Sean Reyes of Utah and Melissa A. Holyoak, Solicitor
General, Patrick Morrisey of West Virginia and Lindsay S. See, Solicitor
General, and Bridget Hill of Wyoming and Ryan Schelhaas, Chief Deputy
Attorney General; for American Commitment Foundation, Inc., by Leon-
ard E. Ireland; for America's Frontline Doctors by Gregory J. Glaser and
George R. Wentz, Jr.; for the Center for Medical Freedom et al. by Wil-
liam J. Olson, Jeremiah L. Morgan, Robert J. Olson, Gary G. Kreep, and
Joseph W. Miller; for Defending The Republic, Inc. by Howard Kleinhend-

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as: 595 U. S. 109 (2022)
113
Per Curiam
mandate for much of the Nation's work force. The mandate,
wh
ich employers must enforce, applies to roughly 84 million
workers, covering virtually all employers with at least 100
employees. It requires that covered workers receive a
COVID–19 vaccine, and it pre-empts contrary state laws.
The only exception is for workers who obtain a medical test
each week at their own expense and on their own time, and
also wear a mask each workday. OSHA has never before
imposed such a mandate. Nor has Congress. Indeed, al-
though Congress has enacted signifcant legislation address-
ing the COVID–19 pandemic, it has declined to enact any
measure similar to what OSHA has promulgated here.
Many States, businesses, and nonproft organizations chal-
lenged OSHA's rule in Courts of Appeals across the country.
The Fifth Circuit initially entered a stay. But when the
cases were consolidated before the Sixth Circuit, that court
lifted the stay and allowed OSHA's rule to take effect. Ap-
plicants now seek emergency relief from this Court, arguing
that OSHA's mandate exceeds its statutory authority and is
otherwise unlawful. Agreeing that applicants are likely to
prevail, we grant their applications and stay the rule.
ler and Sidney Powell; for the Foundation of Moral Law by John A. Eids-
moe and Roy S. Moore; for The IU Family for Choice, Not Mandates, Inc.,
by James Bopp, Jr., and Courtney Turner Milbank; for Local Unions 1249
et al. by Brian J. LaClair; for Members of Congress by John Clay Sulli-
van; for Standard Process Inc. by Joseph S. Diedrich and David A. Lopez;
for Texas Values et al. by Christopher E. Mills; for Tore Says LLC by
Grant J. Guillot; for Two Unnamed Workers by Dennis Grossman; for
the Washington Legal Foundation by John M. Masslon II and Cory L.
Andrews; for We The Patriots USA, Inc., by Norman A. Pattis; and for
Jason Feliciano et al. by Arthur A. Schulez, Sr.
Briefs of amici curiae urging reversal in both cases were fled for Ad-
vancing American Freedom by Matthew J. Sheehan (urges stay of ETS);
for the Liberty, Life and Law Foundation by Deborah J. Dewart (urges
reinstatement of stay); and for 400 Physicians et al. by William Wagner
and Erin Elizabeth Mersino.
Deepak Gupta fled a brief in both cases for the American Public Health
Association et al. as amici curiae urging affrmance.

114 N
ATIONAL FEDERATION OF INDEPENDENT
BUSINESS v. OSHA
Per Curiam
I
A
Congress
enacted the Occupational Safety and Health Act
in 1970. 84 Stat. 1590, 29 U. S. C. § 651 et seq. The Act cre-
ated the Occupational Safety and Health Administration
(OSHA), which is part of the Department of Labor and under
the supervision of its Secretary. As its name suggests,
OSHA is tasked with ensuring occupational safety—that is,
“safe and healthful working conditions.” § 651(b). It does
so by enforcing occupational safety and health standards pro-
mulgated by the Secretary. § 655(b). Such standards must
be “reasonably necessary or appropriate to provide safe or
healthful employment.” § 652(8) (emphasis added). They
must also be developed using a rigorous process that includes
notice, comment, and an opportunity for a public hearing.
§ 655(b).
The Act contains an exception to those ordinary notice-
and-comment procedures for “emergency temporary stand-
ards.” § 655(c)(1). Such standards may “take immediate
effect upon publication in the Federal Register.” Ibid.
They are permissible, however, only in the narrowest of cir-
cumstances: the Secretary must show (1) “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 (2) that the “emergency standard is neces-
sary to protect employees from such danger.” Ibid. Prior
to the emergence of COVID–19, the Secretary had used this
power just nine times before (and never to issue a rule as
broad as this one). Of those nine emergency rules, six were
challenged in court, and only one of those was upheld in full.
See BST Holdings, L.L.C. v. Occupational Safety and
Health Admin., 17 F. 4th 604, 609 (CA5 2021).
B
On September 9, 2021, President Biden announced “a new
plan to require more Americans to be vaccinated.” Re-
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115
Per Curiam
marks on the COVID–19 Response and National Vaccination
E
fforts, 2021 Daily Comp. of Pres. Doc. 775, p. 2. As part
of that plan, the President said that the Department of Labor
would issue an emergency rule requiring all employers with
at least 100 employees “to ensure their workforces are fully
vaccinated or show a negative test at least once a week.”
Ibid. The purpose of the rule was to increase vaccination
rates at “businesses all across America.” Ibid. In tandem
with other planned regulations, the administration's goal was
to impose “vaccine requirements” on “about 100 million
Americans, two-thirds of all workers.” Id., at 3.
After a 2-month delay, the Secretary of Labor issued the
promised emergency standard. 86 Fed. Reg. 61402 (2021).
Consistent with President Biden's announcement, the rule
applies to all who work for employers with 100 or more em-
ployees. There are narrow exemptions for employees who
work remotely “100 percent of the time” or who “work exclu-
sively outdoors,” but those exemptions are largely illusory.
Id., at 61460. The Secretary has estimated, for example,
that only nine percent of landscapers and groundskeepers
qualify as working exclusively outside. Id., at 61461. The
regulation otherwise operates as a blunt instrument. It
draws no distinctions based on industry or risk of exposure
to COVID–19. Thus, most lifeguards and linemen face the
same regulations as do medics and meatpackers. OSHA
estimates that 84.2 million employees are subject to its man-
date. Id., at 61467.
Covered employers must “develop, implement, and enforce
a mandatory COVID–19 vaccination policy.” Id., at 61402.
The employer must verify the vaccination status of each em-
ployee and maintain proof of it. Id., at 61552. The mandate
does contain an “exception” for employers that require un-
vaccinated workers to “undergo [weekly] COVID–19 testing
and wear a face covering at work in lieu of vaccination.”
Id., at 61402. But employers are not required to offer this
option, and the emergency regulation purports to pre-empt
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116 N
ATIONAL FEDERATION OF INDEPENDENT
BUSINESS v. OSHA
Per Curiam
state laws to the contrary. Id., at 61437. Unvaccinated em-
ployees
who do not comply with OSHA's rule must be “re-
moved from the workplace.” Id., at 61532. And employers
who commit violations face hefty fnes: up to $13,653 for a
standard violation, and up to $136,532 for a willful one. 29
CFR § 1903.15(d) (2021).
C
OSHA published its vaccine mandate on November 5, 2021.
Scores of par ties—i ncludi ng St ates, busi nesses, trade
groups, and nonproft organizations—fled petitions for re-
view, with at least one petition arriving in each regional
Court of Appeals. The cases were consolidated in the Sixth
Circuit, which was selected at random pursuant to 28
U. S. C. § 2112(a).
Prior to consolidation, however, the Fifth Circuit stayed
OSHA's rule pending further judicial review. BST Hold-
ings, 17 F. 4th 604. It held that the mandate likely exceeded
OSHA's statutory authority, raised separation-of-powers con-
cerns in the absence of a clear delegation from Congress, and
was not properly tailored to the risks facing different types
of workers and workplaces.
When the consolidated cases arrived at the Sixth Circuit,
two things happened. First, many of the petitioners—
nearly 60 in all—requested initial hearing en banc. Second,
OSHA asked the Court of Appeals to vacate the Fifth Cir-
cuit's existing stay. The Sixth Circuit denied the request
for initial hearing en banc by an evenly divided 8-to-8 vote.
In re MCP No. 165, 20 F. 4th 264 (2021). Chief Judge Sutton
dissented, joined by seven of his colleagues. He reasoned
that the Secretary's “broad assertions of administrative
power demand unmistakable legislative support,” which he
found lacking. Id., at 268. A three-judge panel then dis-
solved the Fifth Circuit's stay, holding that OSHA's mandate
was likely consistent with the agency's statutory and consti-
tutional authority. See In re MCP No. 165, 21 F. 4th 357
(CA6 2021). Judge Larsen dissented.
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117
Per Curiam
Various parties then fled applications in this Court
requesti
ng that we stay OSHA's emergency standard.
We consolidated two of those applications—one from the
National Federation of Independent Business, and one from
a coalition of States—and heard expedited argument on
January 7, 2022.
II
The Sixth Circuit concluded that a stay of the rule was not
justifed. We disagree.
A
Applicants are likely to succeed on the merits of their
claim that the Secretary lacked authority to impose the man-
date. Administrative agencies are creatures of statute.
They accordingly possess only the authority that Congress
has provided. The Secretary has ordered 84 million Ameri-
cans to either obtain a COVID–19 vaccine or undergo weekly
medical testing at their own expense. This is no “everyday
exercise of federal power.” In re MCP No. 165, 20 F. 4th,
at 272 (Sutton, C. J., dissenting). It is instead a signifcant
encroachment into the lives—and health—of a vast number
of employees. “We expect Congress to speak clearly when
authorizing an agency to exercise powers of vast economic
and political signifcance.” Alabama Assn. of Realtors v.
Department of Health and Human Servs., 594 U. S. –––, –––
(2021) (per curiam) (internal quotation marks omitted).
There can be little doubt that OSHA's mandate qualifes as
an exercise of such authority.
The question, then, is whether the Act plainly authorizes
the Secretary's mandate. It does not. The Act empowers
the Secretary to set workplace safety standards, not broad
public health measures. See 29 U. S. C. § 655(b) (directing
the Secretary to set “occupational safety and health stand-
ards” (emphasis added)); § 655(c)(1) (authorizing the Secre-
tary to impose emergency temporary standards necessary to
protect “employees” from grave danger in the workplace).
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118 N
ATIONAL FEDERATION OF INDEPENDENT
BUSINESS v. OSHA
Per Curiam
Confrming the point, the Act's provisions typically speak to
hazards
that employees face at work. See, e. g., §§ 651, 653,
657. And no provision of the Act addresses public health
more generally, which falls outside of OSHA's sphere of
expertise.
The dissent protests that we are imposing “a limit found
no place in the governing statute.” Post, at 133 ( joint opin-
ion of Breyer, Sotomayor, and Kagan, JJ.). Not so. It
is the text of the agency's Organic Act that repeatedly makes
clear that OSHA is charged with regulating “occupational”
hazards and the safety and health of “employees.” See, e. g.,
§§ 652(8), 654(a)(2), 655(b)–(c).
The Solicitor General does not dispute that OSHA is
limited to regulating “work-related dangers.” Response
Brief for OSHA in No. 21A244 etc., p. 45 (OSHA Response).
She instead argues that the risk of contracting COVID–19
qualifes as such a danger. We cannot agree. 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 ev-
erywhere else that people gather. That kind of universal
risk is no different from the day-to-day dangers that all face
from crime, air pollution, or any number of communicable
diseases. 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 signifcantly ex-
pand OSHA's regulatory authority without clear congres-
sional authorization.
The dissent contends that OSHA's mandate is comparable
to a fre or sanitation regulation imposed by the agency.
See post, at 133–134. But a vaccine mandate is strikingly
unlike the workplace regulations that OSHA has typically
imposed. A vaccination, after all, “cannot be undone at the
end of the workday.” In re MCP No. 165, 20 F. 4th, at 274
(Sutton, C. J., dissenting). Contrary to the dissent's conten-
tion, imposing a vaccine mandate on 84 million Americans in
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as: 595 U. S. 109 (2022)
119
Per Curiam
response to a worldwide pandemic is simply not “part of
what
the agency was built for.” Post, at 136.
That is not to say OSHA lacks authority to regulate
occupation-specifc risks related to COVID–19. Where the
virus poses a special danger because of the particular fea-
tures 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 associ-
ated with working in particularly crowded or cramped envi-
ronments. But the danger present in such workplaces
differs in both degree and kind from the everyday risk of
contracting COVID–19 that all face. OSHA's indiscriminate
approach fails to account for this crucial distinction—
between occupational risk and risk more generally—and ac-
cordingly 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).
In looking for legislative support for the vaccine mandate,
the dissent turns to the American Rescue Plan Act of 2021,
Pub. L. 117–2, 135 Stat. 4. See post, at 133. That legislation,
signed into law on March 11, 2021, of course said nothing
about OSHA's vaccine mandate, which was not announced
until six months later. In fact, the most noteworthy action
concerning the vaccine mandate by either House of Congress
has been a majority vote of the Senate disapproving the
regulation on December 8, 2021. S. J. Res. 29, 117th Cong.,
1st Sess. (2021).
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 man-
date extends beyond the agency's legitimate reach. Free
Enterprise Fund v. Public Company Accounting Oversight
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120 N
ATIONAL FEDERATION OF INDEPENDENT
BUSINESS v. OSHA
Per Curiam
Bd., 561 U. S. 477, 505 (2010) (internal quotation marks
omitted).
*
B
The equities do not justify withholding interim relief. We
are told by the States and the employers that OSHA's
mandate will force them to incur billions of dollars in unre-
coverable compliance costs and will cause hundreds of thou-
sands of employees to leave their jobs. See Application in
No. 21A244, pp. 25–32; Application in No. 21A247, pp. 32–
33; see also 86 Fed. Reg. 61475. For its part, the Federal
Government says that the mandate will save over 6,500 lives
and prevent hundreds of thousands of hospitalizations.
OSHA Response 83; see also 86 Fed. Reg. 61408.
It is not our role to weigh such tradeoffs. In our system
of government, that is the responsibility of those chosen by
the people through democratic processes. Although Con-
gress has indisputably given OSHA the power to regulate
occupational dangers, it has not given that agency the power
to regulate public health more broadly. Requiring the vac-
cination of 84 million Americans, selected simply because
they work for employers with more than 100 employees,
certainly falls in the latter category.
***
The applications for stays presented to Justice Kava-
naugh and by him referred to the Court are granted.
OSHA's COVID–19 Vaccination and Testing; Emergency
Temporary Standard, 86 Fed. Reg. 61402, is stayed pending
disposition of the applicants' petitions for review in the
United States Court of Appeals for the Sixth Circuit and
*The dissent says that we do “not contest,” post, at 131, that the man-
date was otherwise proper under the requirements for an emergency tem-
porary standard, see 29 U. S. C. § 655(c)(1). To be clear, we express no
view on issues not addressed in this opinion.
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121
Gorsuch, J., concurring
disposition of the applicants' petitions for writs of certiorari,
i
f such writs are timely sought. Should the petitions for
writs of certiorari be denied, this order shall terminate auto-
matically. In the event the petitions for writs of certiorari
are granted, the order shall terminate upon the sending
down of the judgment of this Court.
It is so ordered.
Justice Gorsuch, with whom Justice Thomas and Jus-
tice Alito join, concurring.
The central question we face today is: Who decides? No
one doubts that the COVID–19 pandemic has posed chal-
lenges for every American. Or that our state, local, and na-
tional governments all have roles to play in combating the
disease. The only question is whether an administrative
agency in Washington, one charged with overseeing work-
place safety, may mandate the vaccination or regular testing
of 84 million people. Or whether, as 27 States before us
submit, that work belongs to state and local governments
across the country and the people's elected representatives
in Congress. This Court is not a public health authority.
But it is charged with resolving disputes about which author-
ities possess the power to make the laws that govern us
under the Constitution and the laws of the land.
*
I start with this Court's precedents. There is no question
that state and local authorities possess considerable power
to regulate public health. They enjoy the “general power
of governing,” including all sovereign powers envisioned by
the Constitution and not specifcally vested in the federal
government. National Federation of Independent Busi-
ness v. Sebelius, 567 U. S. 519, 536 (2012) (opinion of Rob-
erts, C. J.); U. S. Const., Amdt. 10. And in fact, States have
pursued a variety of measures in response to the current
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pandemic. E. g., Cal. Dept. of Public Health, All Facilities
Letter
21–28.1 (Dec. 27, 2021); see also N. Y. Pub. Health Law
Ann. § 2164 (West 2021).
The federal government's powers, however, are not gen-
eral but limited and divided. See McCulloch v. Maryland,
4 Wheat. 316, 405 (1819). Not only must the federal govern-
ment properly invoke a constitutionally enumerated source
of authority to regulate in this area or any other. It must
also act consistently with the Constitution's separation of
powers. And when it comes to that obligation, this Court
has established at least one frm rule: “We expect Congress
to speak clearly” if it wishes to assign to an executive agency
decisions “of vast economic and political signifcance.” Ala-
bama Assn. of Realtors v. Department of Health and
Human Servs., 594 U. S. –––, ––– (2021) (per curiam) (inter-
nal quotation marks omitted). We sometimes call this the
major questions doctrine. Gundy v. United States, 588 U. S.
–––, ––– (2019) (Gorsuch, J., dissenting).
OSHA's mandate fails that doctrine's test. The agency
claims the power to force 84 million Americans to receive a
vaccine or undergo regular testing. By any measure, that
is a claim of power to resolve a question of vast national
signifcance. Yet Congress has nowhere clearly assigned so
much power to OSHA. Approximately two years have
passed since this pandemic began; vaccines have been avail-
able for more than a year. Over that span, Congress has
adopted several major pieces of legislation aimed at combat-
ing COVID–19. E. g., American Rescue Plan Act of 2021,
Pub. L. 117–2, 135 Stat. 4. But Congress has chosen not to
afford OSHA—or any federal agency—the authority to issue
a vaccine mandate. Indeed, a majority of the Senate even
voted to disapprove OSHA's regulation. See S. J. Res. 29,
117th Cong., 1st Sess. (2021). It seems, too, that the agency
pursued its regulatory initiative only as a legislative “ `work-
around.' ” BST Holdings, L.L.C. v. OSHA, 17 F. 4th 604, 612
(CA5 2021). Far less consequential agency rules have run
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123
Gorsuch, J., concurring
afoul of the major questions doctrine. E. g., MCI Telecom-
mun
ications Corp. v. American Telephone & Telegraph Co.,
512 U. S. 218, 231 (1994) (eliminating rate-fling requirement).
It is hard to see how this one does not.
What is OSHA's reply? It directs us to 29 U. S. C.
§ 655(c)(1). In that statutory subsection, Congress author-
ized OSHA to issue “emergency” regulations upon determin-
ing that “employees are exposed to grave danger from expo-
sure to substances or agents determined to be toxic or
physically harmful” and “that such emergency standard[s]
[are] necessary to protect employees from such danger[s].”
According to the agency, this provision supplies it with “ `al-
most unlimited discretion' ” to mandate new nationwide rules
in response to the pandemic so long as those rules are “rea-
sonably related” to workplace safety. 86 Fed. Reg. 61402,
61405 (2021) (internal quotation marks omitted).
The Court rightly applies the major questions doctrine and
concludes that this lone statutory subsection does not clearly
authorize OSHA's mandate. See ante, at 117–118. Section
655(c)(1) was not adopted in response to the pandemic, but
some 50 years ago at the time of OSHA's creation. Since
then, OSHA has relied on it to issue only comparatively mod-
est rules addressing dangers uniquely prevalent inside the
workplace, like asbestos and rare chemicals. See In re:
MCP No. 165, 20 F. 4th 264, 276 (CA6 2021) (Sutton, C. J.,
dissenting from denial of initial hearing en banc). As the
agency itself explained to a federal court less than two years
ago, the statute does “not authorize OSHA to issue sweeping
health standards” that affect workers' lives outside the
workplace. Brief for Department of Labor, In re: AFL–
CIO, No. 20–1158, pp. 3, 33 (CADC 2020). Yet that is pre-
cisely what the agency seeks to do now—regulate not just
what happens inside the workplace but induce individuals to
undertake a medical procedure that affects their lives out-
side the workplace. Historically, such matters have been
regulated at the state level by authorities who enjoy broader
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and more general governmental powers. Meanwhile, at
the
federal level, OSHA arguably is not even the agency
most associated with public health regulation. And in the
rare instances when Congress has sought to mandate
vaccinations, it has done so expressly. E. g., 8 U. S. C.
§ 1182(a)(1)(A)(ii). We have nothing like that here.
*
Why does the major questions doctrine matter? It en-
sures that the national government's power to make the laws
that govern us remains where Article I of the Constitution
says it belongs—with the people's elected representatives.
If administrative agencies seek to regulate the daily lives
and liberties of millions of Americans, the doctrine says, they
must at least be able to trace that power to a clear grant of
authority from Congress.
In this respect, the major questions doctrine is closely re-
lated to what is sometimes called the nondelegation doctrine.
Indeed, for decades courts have cited the nondelegation doc-
trine as a reason to apply the major questions doctrine.
E. g., Industrial Union Dept., AFL–CIO v. American Petro-
leum Institute, 448 U. S. 607, 645 (1980) (plurality opinion).
Both are designed to protect the separation of powers and
ensure that any new laws governing the lives of Americans
are subject to the robust democratic processes the Constitu-
tion demands.
The nondelegation doctrine ensures democratic account-
ability by preventing Congress from intentionally delegating
its legislative powers to unelected offcials. Sometimes law-
makers may be tempted to delegate power to agencies to
“reduc[e] the degree to which they will be held accountable
for unpopular actions.” R. Cass, Delegation Reconsidered:
A Delegation Doctrine for the Modern Administrative State,
40 Harv. J. L. Pub. Pol'y 147, 154 (2017). But the Constitu-
tion imposes some boundaries here. Gundy, 588 U. S.,
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125
Gorsuch, J., concurring
at ––– (Gorsuch, J., dissenting). If Congress could hand off
a
ll its legislative powers to unelected agency offcials, it
“would dash the whole scheme” of our Constitution and en-
able intrusions into the private lives and freedoms of Ameri-
cans by bare edict rather than only with the consent of their
elected representatives. Department of Transportation v.
Association of American Railroads, 575 U. S. 43, 61 (2015)
(Alito, J., concurring); see also M. McConnell, The President
Who Would Not Be King 326–335 (2020); I. Wurman, Nondel-
egation at the Founding, 130 Yale L. J. 1490, 1502 (2021).
The major questions doctrine serves a similar function by
guarding against unintentional, oblique, or otherwise un-
likely delegations of the legislative power. Sometimes, Con-
gress passes broadly worded statutes seeking to resolve im-
portant policy questions in a feld while leaving an agency to
work out the details of implementation. E. g., King v. Bur-
well, 576 U. S. 473, 485–486 (2015). Later, the agency may
seek to exploit some gap, ambiguity, or doubtful expression
in Congress's statutes to assume responsibilities far beyond
its initial assignment. The major questions doctrine guards
against this possibility by recognizing that Congress does
not usually “hide elephants in mouseholes.” Whitman v.
American Trucking Assns., Inc., 531 U. S. 457, 468 (2001).
In this way, the doctrine is “a vital check on expansive and
aggressive assertions of executive authority.” United
States Telecom Assn. v. FCC, 855 F. 3d 381, 417 (CADC 2017)
(Kavanaugh, J., dissenting from denial of rehearing en banc);
see also N. Richardson, Keeping Big Cases From Making
Bad Law: The Resurgent Major Questions Doctrine, 49
Conn. L. Rev. 355, 359 (2016).
Whichever the doctrine, the point is the same. Both
serve to prevent “government by bureaucracy supplanting
government by the people.” A. Scalia, A Note on the Ben-
zene Case, American Enterprise Institute, J. on Govt. & Soc.,
July–Aug. 1980, p. 27. And both hold their lessons for to-
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day's case. On the one hand, OSHA claims the power to
issue
a nationwide mandate on a major question but cannot
trace its authority to do so to any clear congressional man-
date. On the other hand, if the statutory subsection the
agency cites really did endow OSHA with the power it as-
serts, that law would likely constitute an unconstitutional
delegation of legislative authority. Under OSHA's reading,
the law would afford it almost unlimited discretion—and cer-
tainly impose no “specifc restrictions” that “meaningfully
constrai[n]” the agency. Touby v. United States, 500 U. S.
160, 166–167 (1991). OSHA would become little more than
a “roving commission to inquire into evils and upon discovery
correct them.” A. L. A. Schechter Poultry Corp. v. United
States, 295 U. S. 495, 551 (1935) (Cardozo, J., concurring).
Either way, the point is the same one Chief Justice Marshall
made in 1825: There are some “important subjects, which
must be entirely regulated by the legislature itself,” and oth-
ers “of less interest, in which a general provision may be
made, and power given to [others] to fll up the details.”
Wayman v. Southard, 10 Wheat. 1, 43 (1825). And on no
one's account does this mandate qualify as some “detail.”
*
The question before us is not how to respond to the pan-
demic, but who holds the power to do so. The answer is
clear: Under the law as it stands today, that power rests with
the States and Congress, not OSHA. In saying this much,
we do not impugn the intentions behind the agency's man-
date. Instead, we only discharge our duty to enforce the
law's demands when it comes to the question who may
govern the lives of 84 million Americans. Respecting those
demands may be trying in times of stress. But if this Court
were to abide them only in more tranquil conditions, declara-
tions of emergencies would never end and the liberties our
Constitution's separation of powers seeks to preserve would
amount to little.
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Breyer, Sotomayor, and Kagan, JJ., dissenting
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 dis-
ease has by now killed almost 1 million Americans and hospi-
talized almost 4 million. It spreads by person-to-person
contact in confned 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 com-
manded it to: It took action to address COVID–19's continu-
ing threat in those spaces. The Occupational Safety and
Health Administration (OSHA) issued an emergency tempo-
rary 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 Stand-
ard from taking effect. In our view, the Court's order seri-
ously 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 Govern-
ment offcials given the responsibility to respond to work-
place health emergencies. We respectfully dissent.
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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 ap-
proaches 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 affect-
ing 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 neces-
sary 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 man-
date.” Ante, at 112–113, 116, 118, 119.) 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 “condi-
tions, practices, means, methods, operations, or processes”
make its workplace equivalently “safe and healthful.” 29
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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 fled 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 consoli-
dated 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, 21 F. 4th 357 (2021). The applicants
now ask this Court to stay the Standard for the duration of
the litigation. Today, the Court grants that request, contra-
vening 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 appli-
cants must show: (1) that their “claims are likely to prevail,”
(2) “that denying them relief would lead to irreparable in-
jury,” and (3) “that granting relief would not harm the public
interest.” Roman Catholic Diocese of Brooklyn v. Cuomo,
592 U. S. –––, ––– (2020) (per curiam). Moreover, because
the applicants seek judicial intervention that the Sixth Cir-
cuit 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., concur-
ring in denial of application for injunctive relief ) (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 fts the language of
the applicable statutory provision. Once again, that provi-
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sion commands—not just enables, but commands—OSHA to
issue
an emergency temporary standard whenever it deter-
mines “(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 Col-
legiate Dictionary 572 (11th ed. 2005) (defning “hazard” as a
“source of danger”); id., at 24 (defning “agent” as a “chemi-
cally, physically, or biologically active principle”); id., at 1397
(defning “virus” as “the causative agent of an infectious
disease”).
The virus also poses a “grave danger” to millions of em-
ployees. 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: Inter-
pretive 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 contin-
ued 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 test-
ing and masking or vaccination, on a host of studies and gov-
ernment reports showing why those measures were of un-
paralleled use in limiting the threat of COVID–19 in most
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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, hospi-
talization, 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 em-
ploys, in both its enforcement and health divisions, numerous
scientists, doctors, and other experts in public health, espe-
cially as it relates to work environments. Their decisions,
we have explained, should stand so long as they are sup-
ported by “ `such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.' ” Ameri-
can 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 effcacy of masking, testing, and vaccina-
tion, 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
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prevent those harms. Instead, the majority claims that the
A
ct 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 117. 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 limi-
tation on OSHA's regulatory authority. Of course, the ma-
jority is correct that OSHA is not a roving public health
regulator, see ante, at 117–118: It has power only to protect
employees from workplace hazards. But as just explained,
that is exactly what the Standard does. See supra, at 130–
131. And the Act requires nothing more: Contra the major-
ity, 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” deter-
mined to be “physically harmful.” § 655(c)(1). The statute
does not require that employees are exposed to those dan-
gers only while on the workplace clock. And that should
settle the matter. When Congress “enact[s] expansive lan-
guage 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. Penn-
sylvania, 591 U. S. –––, ––– (2020) (alteration and internal
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Breyer, Sotomayor, and Kagan, JJ., dissenting
quotation marks omitted). That is what the majority today
does—i
mpose a limit found no place in the governing statute.
Consistent with Congress's directives, OSHA has long reg-
ulated risks that arise both inside and outside of the work-
place. For example, OSHA has issued, and applied to nearly
all workplaces, rules combating risks of fre, faulty electrical
installations, and inadequate emergency exits—even though
the dangers prevented by those rules arise not only in work-
places but in many physical facilities (e. g., stadiums, schools,
hotels, even homes). See 29 CFR § 1910.155 (2020) (fre);
§§ 1910.302–1910.308 (electrical installations); §§ 1910.34–
1910.39 (exit routes). Similarly, OSHA has regulated to re-
duce risks from excessive noise and unsafe drinking water—
again, risks hardly confned to the workplace. See § 1910.95
(noise); § 1910.141 (water). A biological hazard—here, the
virus causing COVID–19—is no different. Indeed, Con-
gress 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 work-
place 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 typ-
ical workplace do not diminish just because the disease also
endangers people in other settings.
That is especia l ly so because —as OSHA amply
established—COVID–19 poses special risks in most work-
places, across the country and across industries. See 86
Fed. Reg. 61424 (“The likelihood of transmission can be exac-
erbated by common characteristics of many workplaces”).
The majority ignores these fndings, 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 peri-
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ods of time.” Id., at 61411. In other words, COVID–19
spreads
more widely in workplaces than in other venues be-
cause 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, “work-
ers 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 offces. Id., at 61412–61416. But still,
OSHA took care to tailor the Standard. Where it could ex-
empt work settings without exposing employees to grave
danger, it did so. See id., at 61419–61420; supra, at 128–
129. 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 ma-
jority, in overturning that action, substitutes judicial diktat
for reasoned policymaking.
The result of its ruling is squarely at odds with the statu-
tory scheme. As shown earlier, the Act's explicit terms
authorize the Standard. See supra, at 129–131. 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 127–129. The entire point
of that provision is to enable OSHA to deal with emergen-
cies—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 re-
sponse 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.
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Breyer, Sotomayor, and Kagan, JJ., dissenting
We know that, frst and foremost, from the breadth of the
author
ity Congress granted to OSHA. And we know that
because of how OSHA has used that authority from the stat-
ute'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 mil-
lions of employees. See, e. g., 29 CFR § 1910.141. It has
previously regulated infectious disease, including by facili-
tating 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 employ-
ers 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 refects 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 thou-
sands and sickened millions; that is most easily transmitted
in the shared indoor spaces that are the hallmark of Amer-
ican 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 re-
sponded to the special risks of transmission in work environ-
ments. 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 dan-
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ger 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. 571, 580 (2017) (per curiam) (“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 129. Here, they do not. The lives and health of the Na-
tion's workers are at stake. And the majority deprives the
Government of a measure it needs to keep them safe.
Consider frst the economic harms asserted in support of
a stay. The employers principally argue that the Standard
will disrupt their businesses by prompting hundreds of thou-
sands of employees to leave their jobs. But OSHA ex-
pressly considered that claim, and found it exaggerated.
According to OSHA, employers that have implemented vac-
cine 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 mask-
ing and testing instead. See supra, at 128. In addition,
OSHA noted that the Standard would provide employers
with some countervailing economic benefts. Many employ-
ees, 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.
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137
Breyer, Sotomayor, and Kagan, JJ., dissenting
More fundamentally, the public interest here—the interest
i
n protecting workers from disease and death—overwhelms
the employers' alleged costs. As we have said, OSHA esti-
mated that in six months the emergency standard would
save over 6,500 lives and prevent over 250,000 hospitaliza-
tions. 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 (report-
ing 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 hospital-
izations has quadrupled, to a level not seen since the pandem-
ic'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 hos-
pital 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 insuffcient
vaccination rates could “foster the development of new vari-
ants 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 dis-
cretion 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, sim-
ple question: Who decides how much protection, and of what
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ATIONAL FEDERATION OF INDEPENDENT
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Breyer, Sotomayor, and Kagan, JJ., dissenting
kind, American workers need from COVID–19? An agency
w
ith expertise in workplace health and safety, acting as Con-
gress 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 pol-
icies 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 expe-
rience and expertise in handling workplace health and safety
issues. The Standard also has the virtue of political ac-
countability, 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 back-
ground, competence, and expertise to assess” workplace
health and safety issues. South Bay United Pentecostal
Church, 590 U. S., at ––– (opinion of Roberts, C. J.). When
we are wise, we know enough to defer on matters like this
one. When we are wise, we know not to displace the judg-
ments 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-
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139
Breyer, Sotomayor, and Kagan, JJ., dissenting
raging pandemic, this Court tells the agency charged with
protec
ting 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 offcials,
acting well within the scope of their authority, to protect
American workers from grave danger.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None