In an unusual special session, on January 7, 2022, the U.S. Supreme Court heard oral arguments regarding OSHA’s Vaccination and Testing Emergency Temporary Standard (ETS), which requires employers with 100 or more employees to mandate that their employees either receive a COVID-19 vaccination or undergo at least weekly COVID-19 testing and wear facemasks.

We previously published a legal update regarding the revival of the Occupational and Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) by the U.S. Court of Appeals for the Sixth Circuit. Since the stay was dissolved in mid-December, and the ETS went back into effect, OSHA exercised its enforcement discretion to effectively reset the ETS’s compliance deadlines. OSHA is scheduled to begin enforcing all ETS provision, except the testing requirement, on January 10, 2022, with testing required starting February 9, 2022.

Once the Sixth Circuit lifted the stay , multiple petitioners, including 27 states, filed emergency stay applications with the U.S. Supreme Court. Petitioners are requesting that the Court reinstitute the stay while the Sixth Circuit proceeds on the merits of the ETS. As alternative relief, some petitioners requested review before judgment by the Sixth Circuit and a decision on the legality of the ETS. Many amici curiae (friend-of-the-court) briefs were filed on both sides of the issue.

The matter was initially assigned to Justice Kavanaugh, who oversees the Sixth Circuit, but he referred the case to the full Court for review, and the Court scheduled a special oral argument session, which was held on January 7, 2022.

The following is a summary of the oral arguments and some key takeaways:

Applicants’ Arguments Highlight Agency Overreach of the ETS and Potential Economic Impact

Scott A. Keller presented the initial argument for the Applicants, a coalition of business groups known as the National Federation of Independent Business, generally arguing that OSHA does not have sweeping authority to publish and enforce a COVID-19 mandate covering nearly the entire U.S. workforce. He stressed the fiscal impact the mandate would have across the country, leading to significant job displacement and financial hardships, including business bankruptcies resulting from compliance costs and loss of workforce due to employees quitting to avoid the mandate. Applicants view the vaccine and testing requirements for businesses as a government overreach, noting that quasi-governmental entities such as the U.S. Postal Service and Amtrak had expressed concern and asked for some reprieve from the ETS.

The Justices’ questions predictably focused on whether the mandate was necessary to protect workers from the inarguable risk posed by COVID-19. A key question addressed in questioning by multiple Justices was “who decides”– i.e., who is in a better position to act in this situation, the Courts, Congress, OSHA, or some other entity? Applicants argued that unlike a traditional workplace hazard, such as sparks flying from a machine (an analogy suggested by one of the Justices), the virus is something that transcends the borders of the workplace and extends into the community, and therefore should not be under OSHA’s purview. Applicants criticized the uniform, “one-size-fits-all” application of the mandate, arguing that whatever limiting line should be drawn on OSHA’s authority, the ETS crossed well beyond it. Applicants suggested that a narrower approach, such as targeting specific industries, might pass legal muster, but that was not the path OSHA chose and was not the question before the Court.

Encouraged by Justices Gorsuch and Kavanaugh, Applicants’ arguments also addressed the “major questions doctrine,” which counsels that Courts shall not defer to agencies’ statutory interpretations with regard to questions of great economic or political significance. Applicants argued that OSHA needs to have clear congressional authorization under this doctrine before issuing regulations such as the ETS.

Ohio’s Solicitor General, Benjamin M. Flowers, appeared for the Applicant as well, representing the many states who filed emergency stay petitions. Mr. Flowers fielded similar questions focusing on the scope of OSHA authority and furthered Applicants’ argument for an immediate stay.

Respondents’ Arguments Highlight OSHA’s Authority to Issue the ETS and the Necessity of the ETS to Protect Unvaccinated Workers from COVID-19

Solicitor General Elizabeth B. Prelogar presented the Biden Administration’s arguments, arguing that Congress charged OSHA with setting nationwide standards to protect the health and safety of employees throughout the nation, regardless of industry, and the ETS falls squarely within that authority. Exposure to COVID-19 in the workplace, Respondents argued, represents the biggest threat to workers in OSHA’s history.

Respondents staked a position that the “grave danger” posed by COVID-19 is to the unvaccinated. Respondents cited “overwhelming evidence” that grave danger exists anywhere employees gather together indoors. While, Justice Kagan noted, people may choose whether to go to a baseball game and with whom they might attend such an event, they do not have similar control over their work environments.

Other Justices, particularly Chief Justice Roberts, questioned the government’s agency-by-agency approach to vaccine mandates, referencing the federal contractor mandate and the Centers for Medicare and Medicaid Services regulation, wondering whether the issue of vaccine rules should be considered more broadly. The Justices again discussed the major questions doctrine and suggested that Congress should re-issue statutory authority or clarify whether OSHA has plenary authority to regulate occupational safety and health. In response, Respondents emphasized that Congress has acted by passing the OSH Act and charging the Agency with protecting employees from “grave dangers” in emergency situations.

Justice Alito asked Solicitor General Prelogar if the government would oppose a brief administrative stay while the Court continued its review of the emergency stay applications. While agreeing that the Court has that prerogative, ut the Solicitor General noted that a grave danger continues to exist and more lives are being lost every day. Justice Breyer frequently noted the recent uptick in COVID-19 cases, stating, e.g., “when they issued this order, there were 70 something thousand new cases every day. Yesterday, there were close to 750,000. If we delay it one day, if it were to have effect, 750,000 more people will have COVID who otherwise if we did not delay would not have.”

On the question of economic impact, Respondents explained that OSHA thoroughly considered these issues when making a decision to issue the ETS. OSHA found that, in other circumstances where COVID-19 vaccines had been mandated, there were substantial compliance among employees, and the concern that workers would leave in droves was misplaced and has not, in fact, played out. Respondents also argued that a similar number of vaccinated employees may leave the workplace if forced to work alongside unvaccinated colleagues. Respondents clarified that the threat of resignations likely would not occur until February 9 when the testing requirement comes into effect.

What Does This Mean for Employers?

Unless and until the Supreme Court orders the ETS stayed, it remains in effect, and employers should proceed with good faith efforts to comply. OSHA will initiate enforcement concerning most of the ETS’s provisions on Monday, January 10, 2022; enforcement of the requirement that unvaccinated employees test at least weekly will begin on February 9, 2022.