Health Care

RELEASE: Supreme Court Wrong to Stand in OSHA’s Way of Protecting American Workers from COVID-19

WASHINGTON – Following today’s ruling from the U.S. Supreme Court in NFIB v. OSHA, staying OSHA’s vaccinate-or-test policy for businesses with 100 or more employees, Constitutional Accountability Center Vice President Praveen Fernandes issued the following reaction:

The Supreme Court’s decision today on the OSHA vaccinate-or-test policy is as disconnected from reality as it wrong on the law.

The Court suggested that the federal government can’t require large employers to take steps to protect their own workers because, in the conservative majority’s view, COVID-19 is not an occupational hazard. Yet COVID-19 is plainly a hazard that millions of Americans face in their workplaces. Indeed, that’s why the Supreme Court has fundamentally transformed its own workplace in response to COVID-19. Determining the best way to respond to occupational hazards—even those hazards that might also exist outside of the workplace—is exactly what Congress authorized OSHA to do.

As the dissenting opinion pointed out, “Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?”

Nothing in Supreme Court precedent or the text and history of the Constitution compelled the Court to overrule OSHA’s expert determination here. Indeed, precedent and history compel the opposite result. From the earliest days of the Republic, Congress has delegated broad legislative authority to executive officials to address some of the nation’s most pressing problems.

Here, Congress delegated authority to OSHA to protect America’s workers, and OSHA answered that call, taking steps to protect millions of American workers. The Supreme Court was wrong to stand in its way. American workers might pay for the Court’s mistake with their health and lives.



CAC case page in NFIB v. OSHA (In Re: OSHA Rule on COVID-19 Vaccination and Testing):

RELEASE: Justices Hear Challenge to OSHA Vaccinate-Or-Test Policy, January 7, 2022:

RELEASE: Federal Appeals Court Allows OSHA Vaccinate-Or-Test Policy to Take Effect, December 17, 2021:

RELEASE: CAC Tells Court: Dissolve Fifth Circuit Stay of Vaccinate-or-Test Policy, November 23, 2021:


Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at


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