The Danger of Applying the Major Questions Doctrine to Major Risks

In the matter of NFIB v. OSHA, the Supreme Court refused to uphold an emergency temporary standard (ETS) from the Occupational Safety and Health Administration (OSHA), which required large employers to have their workers vaccinated or masked and tested. The Court employed the Major Questions Doctrine as part of its rationale for limiting OSHA’s authority and suggested that COVID-19, as it was understood at the time of the decision, was specific to one or two industries.

A new study by Elissa Gentry of Florida State University College of Law and W. Kip Viscusi of Vanderbilt Law School criticizes the Court’s treatment of agencies’ emergency authority, warning that agencies may not be able to act with the necessary swiftness in the next crisis as a result.

OSHA’s Attempt to Temporarily Regulate the Risk of COVID-19

In the case of emergencies, OSHA can issue standards through an ETS if such a publication could protect employees from a grave danger.

In the onset of the pandemic, OSHA issued two ETS’s related to COVID-19. The first focused on healthcare employers and modification of their workplace environment. The second — which applied to employers of 100+ workers, required workers to be vaccinated or mask and test – is the subject of NFIB v. OSHA.

The Court upheld the first but stayed the second. Its decision to stay, the authors note, seemed predicated on two points:

  • risks faced both in and outside the workplace cannot be considered occupational (with some exceptions, including COVID-19 researchers or workers in cramped or crowded workspaces)
  • the vaccine mandate is irreversible, creating issues with the duration of OSHA’s intervention (i.e., a vaccination cannot be undone at the end of the workday)

Concerns over the Supreme Court’s Ruling

The paper raises several concerns with NFIB v. OSHA.

First, the court’s rationale regarding occupational risks (which OSHA’s authority is confined to) leads to questions about how risks would be classified and measured. Historically, occupation-specific risk has been defined by dangers workers have been forced to encounter in the workplace, not dangers exclusive to a workplace. The authors point to OSHA’s regulation of dangers like excessive sound and unsafe drinking water that are prevalent in everyday life.

“In narrowing the definition of occupational risks in ways that are inconsistent with OSHA’s demonstrated prior authority and the science of transmission, the Supreme Court dismisses an agency’s broad assessment of the scientific evidence surrounding transmission and replaces it with intuitive (but, based on scientific evidence, nonsensical) categories of risk,” they write.

Secondly, the Court failed to explain why the irreversibility of a vaccine mandate was an undesirable trait. They also note that OSHA did provide a reversible alternative (masking and testing).

Lastly, the authors point to the Court’s “inconsistent” treatment of the Vaccinate or Test ETS, which was stayed on the same day that the Court upheld a similar measure from the Centers for Medicare and Medicaid Services (CMS), which required Medicare and Medicaid-certified providers and suppliers to ensure their staffs be vaccinated.

“In articulating these unconvincing reasons for why OSHA exceeded its authority in addressing a respiratory infections disease,” the authors conclude, “the Supreme Court’s decision suggests that it merely sought to impose limits on agency action.”

The Limiting Effect of the Major Questions Doctrine

“The major questions doctrine allows the Supreme Court to assess the legitimacy of a regulation based on the number of entities regulated, without considering the number of entities affected by the novel risk,” the authors write. “This heuristic might make more sense with existing risks, for which the inference is stronger that Congress was aware of the specific risk and chose not to delegate it. For emerging risks, however, this inference seems particularly weak.”

The Court’s focus on the scope of the agency’s regulations – rather than the scope of the danger the regulation intends to mitigate — limits the ability of OSHA and other agencies to fulfill their roles.

COVID-19 Impact on Workplaces Expanded Far Beyond Healthcare

The authors analyzed occupational illness rates tracked by the Bureau of Labor Statistics between 2019 and 2020, classifying industries by degree of risk from social contact. They found significant increases in illness rates across a variety of non-healthcare industries, from “Sporting Goods, Hobby, Musical Instruments, and Book Stores” (2,940%) to “Food Manufacturing” (284%).

The majority of industries experienced positive percent changes in illness rate, constituting roughly 95% of the overall employment pool in the study.

“While healthcare industries definitely experience big increases in percent illness rates during this period (including the observation excluded from Figure 1), it is not the only industry category to do so,” the authors write.

A Warning for the Future

The authors warn that NFIB v. OSHA sets a precedent that may hinder future agency action in the face of emergency situations.

“By granting the emergency stay of the Vaccinate or Test ETS, the Supreme Court did more than merely reduce the level of safety for workplaces across the United States. In dismissing the proffered scientific evidence in favor of its own conjecture, the Court created a dangerous precedent that will affect how evidence is valued and how agencies are allowed to respond to emerging risks,” the authors write.

With the world growing more interconnected, fixating on the size of the intervention at the expense of risk only creates larger challenges in the face of emerging risks. “The resurrection of the major questions doctrine in this context will lead to unnecessary deaths.”

The Misapplication Of The Major Questions Doctrine To Emerging Risks” is forthcoming in the Houston Law Review.