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Latest: U.S. Supreme Court Hears Arguments on OSHA COVID-19 Vaccination and Masking/Testing Requirements

On November 5, 2021, OSHA issued an Emergency Temporary Standard (“ETS”) requiring vaccinations for companies with over 100 employees or in the alternative requiring masking and testing. The ETS was immediately challenged in circuit courts across the nation by a mix of Republican Governors, businesses and religious institutions and then consolidated in the Sixth Circuit after a multi-district lottery. On December 15, 2021, the Sixth Circuit dissolved a stay of the ETS. See In re MCP No. 165, Occupational Safety & Health Admin., Interim Final Rule: COVID-19 Vaccination & Testing, No. 21-7000, et al. 2021 WL 5914024 (6th Cir. Dec. 15, 2021). The Petitioners immediately sought an emergency stay of the Sixth Circuit’s decision to the United States Supreme Court.

SCOTUS heard oral argument earlier today in this case and its ruling on the issue is expected to be issued before Monday, January 10, 2022, the date OSHA has set to begin enforcement of the masking requirement (followed by a February 9 start date to enforce the testing requirement). We provide this initial e-alert for those interested in the reasoning of the Sixth Circuit along with an overview of the oral argument held before SCOTUS while awaiting the final ruling.

Sixth Circuit December 15, 2021 Ruling Lifting Stay of OSHA COVID-19 ETS
The Sixth Circuit found that OSHA’s ETS aimed at reducing harm from the COVID-19 virus falls squarely within the scope of OSHA’s authority. The use of these tools in the current ETS was not a novel expansion of OSHA’s power, rather, it was the use of existing authority applied to a novel and dangerous worldwide pandemic. The Sixth Circuit also explained that OSHA is permitted to issue an ETS if it determines that employees are exposed to grave danger and where the standard is necessary to protect employees from such a danger.

The Sixth Circuit went on to find that OSHA was likely to prevail on the issue of grave danger and on the issue of necessity. As to grave danger, the Sixth Circuit explained that this is a policy consideration that belongs in the first instance to OSHA and that it was not appropriate to second-guess the Agency’s determination, in light of the many peer-reviewed scientific studies, on which OSHA had relied. The Sixth Circuit noted that the 153-page preamble to the ETS laid out in great detail OSHA’s findings and that it was difficult to imagine what more OSHA could do or rely on to justify its findings that workers face a grave danger in the workplace. As to the necessity prong, the Court found that OSHA had compiled substantial evidence that the ETS is essential to reducing the danger posed by the pandemic and that the protections afforded by the ETS outweigh the economic consequences.

SCOTUS January 7, 2022 Oral Argument
A robust two-hour-plus oral argument was held today before SCOTUS regarding OSHA’s Covid-19 vaccination and masking/testing ETS. Justices Kagan, Breyer, and Sotomayor expressed their support for finding that any higher standard that may be required for the issuance of an ETS (as opposed to the normal rulemaking with a notice and comment period) is met here given the threat posed by the Covid-19 virus during this pandemic. Justice Breyer asked whether the Petitioners were really still asking for an immediate stay in the face of the 10-fold increase in Covid-19 cases and the current overwhelming of hospitals as the Omicron variant surges in our country. Chief Justice Roberts’ questioning indicated some support for the ETS but he also focused on whether the ETS could have, or should have, been done targeted to specific industries, and whether OSHA’s ETS was part of a larger plan to institute what amounts to a federal vaccination requirement.

Justices Thomas and Barrett questioned what defines “necessary” for an ETS and whether “necessary” is broader in the face of an emergency. Justices Alito, Gorsuch, and Kavanaugh questioned whether the ETS goes further than permissible imposing a vaccine that impacts workers beyond just their time at work or in exercising a power that goes beyond what OSHA has previously exercised. The extensive questioning by the Justices illustrates the full engagement of the Court on this issue that will impact millions of Americans.

The most likely options are for SCOTUS to: affirm the 6th Circuit’s ruling allowing the ETS to take effect; impose a stay on the ETS effective date; or impose a temporary administrative stay to allow more time for examination of the weighty legal issues. It is not clear how the votes will line up in this case but a ruling from the Court is expected by Monday, January 10, 2022.