February, 2022



On January 13, 2022, the U.S. Supreme Court considered and ruled on a case, Nat’l Fedn. Of Indep. Bus. v. Dept. of Labor, 202 U.S. LEXIS 496, (2022), involving a deadly virus that it hadn’t considered in 117 years, Jacobsen v. Massachusetts, 197 U.S. 11 (Feb. 20, 1905).  The two cases are both similar and dissimilar, not only with the results.

On November 5, 2021, the Secretary of Labor, acting through the Occupational Safety and Health Administration, (“OSHA”), enacted a vaccine mandate for employers with at least 100 workers. The only exception was for workers to obtain a medical test each week and wear a mask each workday.

Some states, businesses and non-profit organizations challenged OSHA’s rule seeking a stay from enforcement.

The Court agreed with the challengers that the Secretary of Labor lacked authority to impose the mandate. 

More importantly, the Court stated that OSHA’s mandate lacked congressional authorization.

The Court did not dispute that OSHA is empowered to regulate “work-related dangers” and to even by-pass ordinary notice-and-comment procedures before enacting rules in cases involving “emergency temporary standards.”  Surprisingly, the Court did not believe that the recent COVID-19 pandemic qualified for such “emergency temporary standard” without such congressional approval to be authorized only where (1)“employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards or (2) that the “emergency standard is necessary to protect employees from such danger.”

But, 117 years ago, the Supreme Court came to a different conclusion when public safety was threatened by a small pox epidemic and one individual challenged Massachusetts’s similar mandate by refusing to be vaccinated. Jacobsen v. Massachusetts, 197 U.S. 11 (Feb. 20, 1905).

This case pitted states’ rights and police power against the personal freedom protections contained in the 14th Amendment to the U.S. Constitution.

The 14th Amendment provides that no State shall make or enforce any law abridging the privileges and immunities of U.S. citizens, nor deprive any person of life, liberty or property without due process of law, nor deny to any person the equal protection of the law.

That Court stated that such 14th Amendment rights are subjected to all kinds of “restraints and burdens” and that this restraint upon personal freedom was warranted.  The Court stated that “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

Because the Court noted that smallpox was prevalent in the City of Cambridge, Massachusetts and the disease was increasing, the city’s Board of Health vaccine mandate was authorized for the public health and safety.

So, 117 years later, faced with the widespread and increasing similar COVID-19 epidemic, a vaccine mandate similarly enacted by an agency, OSHA, charged with public safety and health, which can issue such mandate through its “emergency temporary standard” procedures, faces a different legal fate by the “same” Supreme Court.  Surprising, isn’t it? Or maybe not.

However, even given OSHA’s defeat, many large employers, and even small employers, are already enacting this vaccine mandate for the safety and health of its workers and the public.

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