Public Health Law and Policy in the Wake of NFIB v. OSHA: Probing Emerging Divides in the Supreme Court’s View of Public Health

Ana Santos Rutschman (Saint Louis University), Ruqaiijah Yearby (Saint Louis University), Public Health Law and Policy in the Wake of NFIB v. OSHA: Probing Emerging Divides in the Supreme Court’s View of Public Health, NYU J. Leg. & Pub. Pol’y Quorum (2022):

In early 2022, the Supreme Court struck down an emergency temporary standard enacted by the Occupational Safety and Health Administration. The standard directed large employers (defined as businesses with 100 or more employees) to develop and implement several measures to curb the spread of COVID-19 in the workplace, including the requirement that employees be vaccinated against COVID-19 or submit to regular testing.

In this piece, we explain and critique the majority’s framing of occupational health as wholly separate from public health as a basis for restricting the authority of a federal agency to issue emergency temporary rules to protect workers. We focus our analysis predominantly on two aspects of the majority’s decision and its implications for public health law and policy in years to come: section I provides background information on the emergency standard; section II describes the legal challenges to the standard; section III locates within the broader context of the regulation of public health at the federal level; section IV probes the divide articulated by the Supreme Court between public and occupational health; section V concludes with a brief exploration of alternative regulatory pathways.