Volume 20

Constitutional Challenges to the OSHA COVID-19 Vaccination Mandate

by Paul J. Larkin

Acting pursuant to a presidential directive, in November 2021 the Occupational Safety and Health Administration (OSHA) issued an order, known as a federal “emergency temporary standard” (ETS), requiring private businesses with 100 or more employees to ensure that every employee is vaccinated against COVID-19 or, if unvaccinated, to wear a face covering in the workplace and present a negative test result on a weekly basis. Numerous parties filed suit, arguing that OSHA lacks the authority to issue the ETS and that, even if OSHA has that power, the ETS is unconstitutional. The Supreme Court of the United States concluded that OSHA appears to lack that authority and stayed the ETS pending the completion of the litigation. If OSHA now turns to Congress for authorization, Congress will need to resolve the constitutional issues. In that event, most of the constitutional challenges—viz., ones based on the Due Process Clause, Free Exercise Clause, or Fourth Amendment—are unlikely to prevail. The likelihood of success on a Commerce Clause challenge is uncertain at present.

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