Issues
Should the Supreme Court grant immediate stay of OSHA's emergency order requiring the employees of all businesses with one hundred or more employees to either be vaccinated or submit to weekly testing?
This case asks the Supreme Court to consider whether a stay should be issued against the Occupational Safety and Health Administration’s (“OSHA”) vaccine-or-testing regime for businesses with 100 or more employees. Petitioner the National Federation of Independent Business argues that the Court should stay the emergency temporary standard because it is likely that the emergency temporary standard at issue exceeds OSHA's authority, and the businesses will suffer irreparable harm absent a stay. In response, Respondent OSHA argues that Congress explicitly authorizes it to address COVID-19 exposure at the workplace; and therefore, an emergency temporary standard is lawful when OSHA determines, based on substantial evidence, that it is necessary to address the immediate risk of COVID-19. The Court’s decision on this case could have significant impacts on the economy, constitutionally protected liberties, and public health.
Questions as Framed for the Court by the Parties
Whether the Supreme Court should issue a stay of OSHA's vaccine-or-testing regime for all businesses with 100 or more employees.
Facts
On November 5th, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an emergency temporary standard (ETS) on COVID-19 vaccination and testing requirements. In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing at 4–5. The ETS is meant to be a temporary standard. Id. at 6 OSHA must create a permanent standard within six months of issuing the ETS. Id. The rule requires employers with 100 or more employees to either institute a mandatory vaccine policy or require unvaccinated employees to obtain regular testing and wear face coverings. Id. at 7. COVID-19 has killed many Americans, and OSHA believes that unvaccinated workers in the United States face grave danger in the workplace because they are much more likely to contract COVID-19 and experience severe health effects than vaccinated workers. Id. at 4, 7; see also OSHA Rule at 61403. OSHA must issue an ETS when there is “grave danger” to workers; and, OSHA found that COVID-19 presents a grave danger because of the spread of the virus and the possibility of contracting COVID-19 at work. Id. at 61407.
Given the nature of the virus, OSHA is concerned by the spread of COVID-19 variants, including the Delta variant, and wishes to protect against the spread of possible future variants. Id at 61409. OSHA is also worried about the severe health outcomes, including death, that can occur because of the virus. Id at 61407. OSHA believes that COVID-19 has important impacts on the workplace because employees come into close contact with each other for significant periods of time. Id at 61411. OSHA cites evidence indicating that COVID-19 transmission occurs in various kinds of work settings. Id.
The ETS requires employers to verify the vaccination status of employees and obtain proof of vacation from each employee. Id. at 61478–61479. Employers must support worker efforts to get vaccinated by providing either “reasonable time” or four hours to get vaccinated as well as sick time for recovery. Id. at 61479. Any employee who works in-person at least one out of every seven days, must be tested for COVID-19 at least once out of every seven days. Id. at 61484. Employees who are only partially vaccinated must also partake in weekly testing. Id. Employers are not required to cover the costs of testing. Id.
BST Holdings L.L.C. (BST), and various other businesses, brought an action in the Fifth Circuit Court of Appeals to stay the ETS while the OSHA rule undergoes judicial review. See BST Holdings, LLC v. OSHA. The Fifth Circuit granted the stay, finding that BST was likely to succeed on the merits, that BST would be irreparably harmed without the stay, that the stay would not severely harm other interested parties and that public interest favoured granting the stay. Id. at 5.
As OSHA moved to dissolve the stay, the challenges against the OSHA rule were consolidated into one action and reviewed by the Sixth Circuit Court of Appeals. In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing at 5, 9.
The Sixth Circuit dissolved the stay. Id. at 37. Twenty-six different trade associations then appealed to the Supreme Court seeking a stay against OSHA’s ETS. Emergency Application for Stay at 1.
Analysis
On November 5th, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an emergency temporary standard (ETS) on COVID-19 vaccination and testing requirements. In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing at 4–5. The ETS is meant to be a temporary standard. Id. at 6 OSHA must create a permanent standard within six months of issuing the ETS. Id. The rule requires employers with 100 or more employees to either institute a mandatory vaccine policy or require unvaccinated employees to obtain regular testing and wear face coverings. Id. at 7. COVID-19 has killed many Americans, and OSHA believes that unvaccinated workers in the United States face grave danger in the workplace because they are much more likely to contract COVID-19 and experience severe health effects than vaccinated workers. Id. at 4, 7; see also OSHA Rule at 61403. OSHA must issue an ETS when there is “grave danger” to workers; and, OSHA found that COVID-19 presents a grave danger because of the spread of the virus and the possibility of contracting COVID-19 at work. Id. at 61407.
Given the nature of the virus, OSHA is concerned by the spread of COVID-19 variants, including the Delta variant, and wishes to protect against the spread of possible future variants. Id at 61409. OSHA is also worried about the severe health outcomes, including death, that can occur because of the virus. Id at 61407. OSHA believes that COVID-19 has important impacts on the workplace because employees come into close contact with each other for significant periods of time. Id at 61411. OSHA cites evidence indicating that COVID-19 transmission occurs in various kinds of work settings. Id.
The ETS requires employers to verify the vaccination status of employees and obtain proof of vacation from each employee. Id. at 61478–61479. Employers must support worker efforts to get vaccinated by providing either “reasonable time” or four hours to get vaccinated as well as sick time for recovery. Id. at 61479. Any employee who works in-person at least one out of every seven days, must be tested for COVID-19 at least once out of every seven days. Id. at 61484. Employees who are only partially vaccinated must also partake in weekly testing. Id. Employers are not required to cover the costs of testing. Id.
BST Holdings L.L.C. (BST), and various other businesses, brought an action in the Fifth Circuit Court of Appeals to stay the ETS while the OSHA rule undergoes judicial review. See BST Holdings, LLC v. OSHA. The Fifth Circuit granted the stay, finding that BST was likely to succeed on the merits, that BST would be irreparably harmed without the stay, that the stay would not severely harm other interested parties and that public interest favoured granting the stay. Id. at 5.
As OSHA moved to dissolve the stay, the challenges against the OSHA rule were consolidated into one action and reviewed by the Sixth Circuit Court of Appeals. In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing at 5, 9.
The Sixth Circuit dissolved the stay. Id. at 37. Twenty-six different trade associations then appealed to the Supreme Court seeking a stay against OSHA’s ETS. Emergency Application for Stay at 1.
Discussion
IMPACT ON THE ECONOMY
The Washington Legal Foundation (WLF), in support of NFIB, argues that supply chain issues will continue to harm the economy because the ETS will reduce the number of available workers. Brief of Amicus Curiae Washington Legal Foundation, in Support of Petitioners at 4-5. WLF maintains that employers have lost workers by imposing a vaccine mandate, and the ETS will further exacerbate this issue. Id. at 6–7. Standard Process Inc. echoes this argument, noting that the vaccine mandate will cause a mass resignation of workers. Brief of Amicus Curiae Standard Process, Inc., in Support of Petitioners at 4. Standard Process asserts that the mass resignations would be particularly harmful in rural areas where it is difficult to recruit new workers. Id. at 5. Standard Process adds that COVID-19 testing can be difficult to access, especially in rural areas. Id. at 7. Standard Process also notes that testing can be costly and disruptive to the workplace. Id. at 8–9. We the Patriots USA Inc. argues that COVID-19 testing is expensive; therefore, the average American worker has no choice but to get vaccinated. Brief of Amicus Curiae We the Patriots, in Support of Petitioners at 3.
The National Employment Lawyers Association (NELA), in support of OSHA, asserts that vaccinated employees also have a right to refuse to work if they feel unsafe among unvaccinated workers; accordingly, NELA posits, there would be “a civil war between pro- and anti-vaccine workers.” Brief of Amicus Curiae the National Employment Lawyers Association, in Support of Respondents at 8. NELA also fears that the stay would lead to a slew of other challenges to long-standing regulations like mandatory drug testing, age requirements and physical requirements. Id. at 3-5. Former OSHA Administrators adds to this argument, noting that invalidating the mandate would weaken other OSHA standards and much of OSHA’s work over the last 50 years. Brief of Amicus Curiae Former OSHA Administrators, in Support of Respondents at 14. Finally, the Small Business Majority argues that the ETS supports small businesses by ensuring COVID-19 does not cause forced shutdowns and allowing businesses to thrive. Brief of Amicus Curiae Small Business Majority, in Support of Respondents at 5–7.
CONSTITUTIONAL LIBERTIES AND PUBLIC HEALTH
Liberty, Life, and Law Foundation, in support of NFIB, argues that state governments, and not the federal government, have the power to regulate health and safety matters like COVID-19. Brief of Amicus Curiae Liberty, Life and Law Foundation, in Support of Petitioners at 7. Tore Says, LLC expands on this argument, adding that business entities, and not just individuals, are constitutionally protected from any overreach of power by the government. Brief of Amicus Curiae Tore Says, LLC, in Support of Petitioners at 7. Local Unions notes that the ETS infringes upon personal liberties by imposing a regulation that affects off-duty conduct. Brief of Amicus Curiae Local Unions, in Support of Petitioners at 5. Because the vaccine cannot be undone after work is over, Local Unions explains, the ETS exceeds OSHA’s power. Id. at 6. Texas Values asserts that OSHA provides little guidance for employers to handle workers who have religious objections to the ETS. Brief of Amicus Curiae Texas Values, in Support of Petitioners at 15. This lack of guidance, Texas Values maintains, may lead to the under-protection of religious liberty. Id.
American Public Health, in support of OSHA, stresses that COVID-19 is particularly dangerous for workers and that vaccines are the most adequate method of reducing its impact. Brief of Amicus Curiae American Public Health, in Support of Respondents at 9. The American Medical Association (AMA) echoes this argument, noting that COVID-19 creates a severe risk for public health. Brief of Amicus Curiae American Medical Association, in Support of Respondents at 8. AMA maintains that the COVID-19 vaccine is safe, and that the workplace becomes more protected against the virus as more employees are vaccinated. Id. at 13. The National Disability Rights Network (NDRN) argues that COVID-19 poses an especially great risk for workers who have a disability or certain medical conditions. Brief of Amicus Curiae, The National Disability Rights Network at 10. Staying the ETS, NDRN explains, would have a “devastating and disproportionate” effect on medically vulnerable individuals. Id. at 15. The risk of exposure by unvaccinated co-workers, NDRN adds, constitutes a “new hazard” in the work setting. Id. at 12.
Conclusion
Acknowledgments
Additional Resources
- Robert Iafolla, Covid Shot-or-Test Rule Opponents Press Supreme Court for Stay, Bloomberg Law (January 3, 2022)
- Spencer Kimball, Federal appeals court reinstates Biden administration’s business vaccine and testing mandate, CNBC (December 17, 2021)