The U.S. Supreme Court heard oral argument this morning on requests by multiple states, business groups, and others for a stay of OSHA’s COVID-19 vaccination and testing emergency temporary standard (ETS), which directs certain employers to require that employees be vaccinated or undergo and report weekly COVID-19 tests. The challengers asked the Supreme Court to stay OSHA’s implementation of the ETS while their challenges play out in the Sixth Circuit.
OSHA issued the ETS on November 5, 2021. Under the ETS, which applies to most employers with 100 or more employees, employers must require employees either to provide acceptable proof of vaccination status or provide evidence of a negative COVID-19 test every seven days.
Numerous parties immediately challenged the ETS in every federal circuit. A few days after the ETS’s issuance, the Fifth Circuit stayed the ETS and enjoined OSHA from taking any steps to enforce or implement it.
In mid-November 2021, the Judicial Panel on Multidistrict Litigation selected the Sixth Circuit to hear all pending challenges to the ETS. In the Sixth Circuit, OSHA moved to dissolve the Fifth Circuit’s stay. Challengers opposed that request, and many asked the Sixth Circuit to consider both the stay and the merits of the challenges en banc from the outset rather than through a three-judge panel.
The Sixth Circuit denied the requests for initial en banc consideration. Chief Judge Sutton, joined by seven other active duty Sixth Circuit judges, dissented from that decision and argued at length that OSHA had exceeded its statutory authority in issuing the ETS.
A few days later, on December 17, 2021, a three-judge panel of the Sixth Circuit issued an order dissolving the Fifth Circuit’s stay, with one judge on the panel dissenting. Several challengers immediately asked the Supreme Court to reinstate a stay while the merits of the dispute are litigated. Days later, the Supreme Court agreed to hear argument on the request.
Supreme Court Argument
While the argument was nominally about whether to grant an immediate stay, the Justices struggled with who gets to decide if vaccinations should be required for American workers, the states or the federal government, and if the latter, whether Congress has specifically authorized the broad-reaching approach OSHA has taken in the ETS.
In general, the conservative Justices seemed to believe that OSHA exceeded its authority. Chief Justice Roberts similarly questioned whether the multiple agency responses to COVID-19 represent a larger federal action that should occur pursuant to more express Congressional direction.
Questions from the liberal Justices, however, suggested that they believe OSHA had acted pursuant to adequate Congressional direction and that a stay of the ETS would cause further illness and potential loss of life. Justice Kagan, for instance, asked why the ETS’s broad scope was not justified by the extraordinary and unprecedented risk caused by COVID-19.
All of the Justices acknowledged that COVID-19 is surging throughout the United States, but in the end, a majority of Justices seemed to believe that the ETS is an overreach.
If the Supreme Court issues a stay, the matter would proceed to a merits determination in the Sixth Circuit but employers would not face a threat of enforcement in the short term. At the same time, a Supreme Court stay would be a strong signal for what the Justices think of the ETS and might spell trouble for it in the long run.
In the absence of a stay, this coming Monday, January 10, OSHA will begin enforcement of the ETS’s requirements that employers issue a policy and determine the vaccination status of each employee. Then, on February 9, OSHA will begin enforcing the testing requirements in the ETS.
It is unclear when the Supreme Court will rule, but a decision may be forthcoming in as soon as a few days.
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