Large employers likely had a particularly bad case of the Mondays this week after a weekend of anticipating whether the Supreme Court would stay the Occupational Safety and Health Administration’s (“OSHA”) + (“ETS”) as a result of oral arguments presented on Friday, January 7, 2022. While we would not be surprised if the Court ultimately stays the ETS pending a full ruling on its appropriateness under administrative and constitutional law (possibly by a 6-3 or 5-4 margin), most of the justices did not sufficiently address that question to give us much confidence on what happens next. Therefore, the deafening silence from the Court means that covered employers are still required to adhere to OSHA’s enforcement timeline, and as of January 10, they must: (i) require unvaccinated workers to wear masks; (ii) prepare a written COVID-19 vaccine-or-testing policy; (iii) ask about the vaccination status of each employee; (iv) obtain acceptable proof of vaccination; and (v) maintain a list of employees and their vaccination status. Nevertheless, employers may find out they weren’t alone in their restless dreams, as some of the justices seemed troubled by the ETS.

The Court’s more conservative justices seemed skeptical of the agency’s statutory authority to implement the ETS. Justice Thomas began the questioning with inquiries that focused on the proper meaning of the term “necessary,” as OSHA’s enabling statute provides the agency with authority to pass emergency temporary standards only after a determination that employees are in “grave danger” (which the ETS’ challengers essentially conceded that COVID-19 was) and that the proposed standard is “necessary” to protect workers from that danger. Specifically, Justice Thomas wanted to know whether the term should be given an expansive meaning, such as in the phrase “necessary and proper,” or if the term should be given a more restrictive definition, one that more closely resembles the “indispensable or essential definition of necessary,” as advocated for by the ETS’ challengers. Justice Kagan, however, suggested that regardless of the definition used, the ETS was necessary to combat COVID-19, which she described as “the greatest public health danger that this country has faced in the last century.”

Chief Justice Roberts and Justice Alito seemed to question whether the widespread danger that COVID- 19 presents is particularized enough to the workplace such that Congress intended to vest OSHA with the power to regulate it, echoing concerns raised by Justices Gorsuch and Kavanaugh. The chief justice stated that the ETS had come to be known by some as a “work-around” and that given the growing number of mandates promulgated by various agencies, perhaps the issue of mandatory vaccination or testing policies should be handled individually by the states or Congress, “rather than agency by agency, the federal government, the executive branch, acting alone.” Justices Sotomayor and Kagan appeared to disagree, citing the agency’s considerable policy expertise with respect to identifying workplace dangers across industries.

The justices disagreed over the wisdom and practicality of issuing a stay. Justice Alito seemed inclined to vote in favor of issuing an administrative stay so that the Court could “digest” the numerous “difficult, complicated issues” presented in the case before “people start losing jobs.” Justice Breyer, however, could not fathom how a stay would serve the public interest, particularly in light of reports that nearly three-quarters of a million new cases were reported the day before oral argument, and that hospitals were at or nearing full capacity. Justice Sotomayor also questioned the need for an administrative stay in light of the fact that most of the administrative burden associated with the ETS (e.g., implementation of mandatory vaccinations and/or regular testing) would not go into effect until February 9.