In NFIB v. OSHA, decided January 13, 2022, the Supreme Court blocked a federal rule that would have required roughly 84 million American workers at large private employers to get vaccinated against COVID-19 or submit to weekly testing. The 6-3 order was technically an emergency stay rather than a final ruling on the merits, but the effect was the same: OSHA withdrew the rule 13 days later, and it never took effect. The case has since become a touchstone for how far federal agencies can go without clear authorization from Congress.1National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration
The Rule the Court Blocked
On November 5, 2021, the Occupational Safety and Health Administration published a COVID-19 Vaccination and Testing Emergency Temporary Standard. An Emergency Temporary Standard lets OSHA skip normal notice-and-comment rulemaking when the agency finds workers face a “grave danger” from a new hazard or toxic substance. OSHA had used that authority sparingly across its 50-year history, and this ETS was by far the broadest the agency had ever attempted.
The standard applied to every private employer with 100 or more employees. Those employers had two paths. They could adopt a mandatory vaccination policy, or they could allow unvaccinated workers to test weekly for COVID-19 and wear a face covering on the job. Either way, employers had to verify each worker’s vaccination status, keep records of vaccination proof, and provide paid time off for shots and recovery from side effects.
How the Case Reached the Supreme Court
Dozens of parties challenged the rule in multiple federal appeals courts, and the cases were consolidated by lottery in the Sixth Circuit. Before consolidation, the Fifth Circuit had issued a stay blocking the rule. A three-judge panel of the Sixth Circuit later dissolved that stay, finding OSHA’s mandate was likely lawful. The losing parties took the fight to the Supreme Court on an emergency application, which the Court granted.
Why the Majority Blocked the Rule
Six justices signed a per curiam opinion — an unsigned decision issued on behalf of the Court — concluding that the challengers were likely to win on the merits. To get an emergency stay, applicants have to show they will probably succeed, that they face irreparable harm without relief, and that the stay would not damage the public interest. The majority found all three met.
The reasoning turned on a distinction between workplace safety and general public health. The Occupational Safety and Health Act authorizes OSHA to set workplace safety standards, not to impose broad public health measures on the general population. COVID-19, the majority observed, is a risk people encounter everywhere, not a hazard tied specifically to a job. A vaccination “cannot be undone at the end of the workday,” so the rule effectively regulated workers’ health choices outside the workplace rather than conditions inside it.
The Court also faulted the rule for drawing no distinctions based on industry or actual exposure risk, calling it a “blunt instrument.” In the opinion’s phrasing, “most lifeguards and linemen face the same regulations as do medics and meatpackers.” That one-size-fits-all quality undercut OSHA’s claim that it was addressing a specific occupational danger rather than the pandemic as a whole.
The Major Questions Doctrine
The majority invoked the major questions doctrine, which requires Congress to speak clearly when delegating authority over issues of vast economic and political significance. Compelling 84 million workers to get vaccinated or tested was exactly that kind of issue, the Court reasoned, and nothing in the OSH Act clearly authorized it. In OSHA’s half-century of existence, the agency had never relied on its authority over occupational hazards to impose anything comparable.
The Gorsuch Concurrence
Justice Gorsuch, joined by Justices Thomas and Alito, wrote separately to develop the major questions doctrine and raise concerns about the delegation of legislative power. He framed the doctrine as a safeguard against Congress hiding “elephants in mouseholes,” meaning agencies cannot discover transformative new powers in vague, decades-old statutory language. If OSHA’s reading of its authority were correct, Gorsuch argued, the statute would give the agency “almost unlimited discretion,” making it “little more than a roving commission to inquire into evils and upon discovery correct them.”
His closing line captured the concurrence’s theme: “The question before us is not how to respond to the pandemic, 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.”
The Dissent
Justices Breyer, Sotomayor, and Kagan dissented. They saw COVID-19 as a textbook workplace hazard, particularly in crowded or indoor settings, and argued the ETS fell squarely within OSHA’s core mission of protecting employees from grave danger. The dissent pointed out that “vaccine mandate” was itself a misleading label for the rule, since employers could adopt a testing-and-masking alternative instead.
The dissenters pressed on real-world stakes. OSHA had estimated the rule would save more than 6,500 lives and prevent over 250,000 hospitalizations in just six months. Blocking it, they said, meant the Court was substituting its own judgment for that of the agency Congress had charged with workplace safety. “We ‘lack the background, competence, and expertise to assess’ workplace health and safety issues,” the dissent wrote.
They also rejected the majority’s use of the major questions doctrine. Requiring hyper-specific congressional authorization for every major rule, they warned, would leave agencies unable to respond to emergencies. The OSH Act was written broadly on purpose, they contended, so OSHA could adapt to new threats. The dissent closed bluntly: “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.”
The Same-Day Contrast: Biden v. Missouri
On the same day, the Court upheld a different federal vaccine mandate in Biden v. Missouri. That rule, from the Centers for Medicare and Medicaid Services, required healthcare workers at facilities receiving Medicare or Medicaid funding to get vaccinated against COVID-19.
The Court found that the Secretary of Health and Human Services had clear statutory authorization to set conditions for facilities participating in Medicare and Medicaid, including requirements “necessary in the interest of the health and safety of individuals who are furnished services” at those facilities. Vaccination fit comfortably within that framework. The difference between the two cases came down to fit: OSHA was stretching a workplace-safety statute to cover a universal health risk across every industry, while CMS was using a healthcare-specific statute to impose a healthcare-specific requirement on healthcare workers.
What the Ruling Did Not Do
The decision blocked a federal mandate. It did not prohibit private employers from requiring vaccinations on their own. After the ruling, individual businesses kept the legal authority to set their own vaccination policies as a condition of employment, subject to federal anti-discrimination laws. The Americans with Disabilities Act requires reasonable accommodations for workers who cannot get vaccinated due to a disability, and Title VII of the Civil Rights Act requires accommodations for sincerely held religious beliefs.
The Broader Legacy
NFIB v. OSHA did not exist in isolation. It was part of a series of decisions that reshaped the relationship between federal agencies and the courts. The major questions doctrine, once an informal principle, became a formal tool for striking down ambitious agency action.
Five months later, the Court decided West Virginia v. EPA, using the doctrine to strike down an EPA rule regulating greenhouse gas emissions. That majority explicitly cited NFIB v. OSHA, noting it was “telling that OSHA, in its half century of existence, had never relied on its authority to regulate occupational hazards to impose such a remarkable measure.” West Virginia was the first Supreme Court majority opinion to use the phrase “major questions doctrine” by name.
Two years later, in Loper Bright Enterprises v. Raimondo (2024), the Court overturned Chevron deference, the 40-year-old doctrine that had required courts to defer to an agency’s reasonable interpretation of ambiguous statutes. Justice Kagan’s dissent in that case drew a direct line from NFIB through West Virginia v. EPA to Loper Bright, arguing the Court had systematically “taken for itself decision-making authority Congress assigned to agencies.” That debate — over how much discretion unelected agency officials should have on questions affecting millions of people — is the one NFIB v. OSHA helped set in motion, and it remains unresolved.