When I was a young warehouseman working my way through college, my job was to pick orders – that means gathering the products and items for a given order. I was tempted more than once to climb those 20 foot high shelves to grab a quick item. Climbing the shelves would have saved me the two or three minutes necessary to find a ladder and position it in place. The thing that kept me from shimmying up a 20 foot high industrial shelf was an OSHA sign that prevented general risky work practices. That sign and my employer’s emphasis on workplace safety kept me from taking unnecessary risks. So, imagine my surprise at reading a concurrence from Justices Alito, Gorsuch and Thomas suggesting that OSHA only addresses unique workplace situations involving asbestos and “rare chemicals.” National Federation, concurrence, slip op., p. 3.

A three Justice majority opinion ruled in National Federation of Independent Business v. OSHA that the administration’s vaccine mandate for employers of 100 or more employees was not allowed under the Occupational Safety and Health Act of 1970. The three judge majority found the vaccine mandate was not tailored to actual occupational risks. The COVID19, said the majority, was too general. The risk applied to the population as a whole, not simply to the workplace. That means the vaccine mandate was not tailored to occupational related risks.

No Control

But, as the dissent noted, the workplace endures the COVOD19 in a unique way. It is only in the workplace that workers encounter the risk with no control. Employees cannot control their workplace, as they can control the risk of infection at home or at sporting events. The three judge majority’s opinion more addresses the vast powers allowed under the 1970 act and less addresses the 100 employee mandate. The majority opinion mentions that the risk of infection occurs at home and at sporting events. But, the average worker has no control over the risk at work. The occupation related risk is different.

The reach of the OSH Act is broad. The majority justices seem more concerned with that broad reach. But, their job is to interpret the statute, not re-word the statute.

Three justices, Gorsuch, Thomas and Alito then concur based on the so-called “major questions doctrine.” Their concern is that  something that affects 84 million workers ought be be instituted by Congress or by elected officials, not by OSHA. But, again their real complaint is with the broad mandate of the Occupational Safety and Health Act of 1970, not with the 100 employee mandate. The fact is that OSHA has the authority for such a broad mandate. OSHA already regulates much more than asbestos and “rare chemicals.” And, this former warehouseman is grateful for that broad mandate.

See the decision in National Federation of Independent Business v. OSHA, No. 21A244 (1/13/2022) here.