Supreme Court Hears Oral Argument Over the Fate of OSHA’s ETS

On Friday, January 7, 2022, the Supreme Court of the United States heard an oral argument on the consolidated multi-state challenge to the Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS). The ETS applies to private employers with 100 or more employees. It would require those large employers to mandate employees’ presentation of either proof of vaccination or a negative COVID test at least weekly, and to observe masking requirements.

ETS’s Journey to the Supreme Court

Since its announcement on November 4, 2021, OSHA’s ETS has been subject to immediate challenges, putting it on an expedited path to the Supreme Court. In response to one lawsuit challenging the constitutionality of the ETS, the Fifth Circuit imposed a stay on the enforcement of the ETS on November 6, 2021, just two days after its announcement, noting grave concern over its constitutionality. Subsequently, the various lawsuits about the ETS were consolidated, and landed in the lap of the Sixth Circuit via a lottery system used for the resolution of multi-district litigation. Reversing course, the Sixth Circuit lifted the stay of enforcement on the ETS on December 17, 2021, finding that OSHA plainly had statutory authority to protect workers from viruses, and that OSHA’s use of its emergency powers was justified to address the dire circumstances presented by the ongoing pandemic. The Sixth Circuit noted that those challenging the ETS had a low likelihood of success on the merits, but even if they did, that irreparable harm to the public far outweighed the potential harm to employers.

Following the Sixth Circuit’s decision, OSHA announced that it would begin enforcement of the ETS on January 10, 2022.  However, no employer would be cited prior to February 9, 2022 for failure to comply with the ETS’s testing requirements, so long as the employer was exercising reasonable, good faith efforts to achieve compliance.

Each Side’s Argument to the Nine

Argument before the Supreme Court on Friday, January 7 — the last business day before OSHA would begin enforcement on January 10 — was slated for one hour, but lasted two.

The states challenging the constitutionality of the ETS argued primarily that OSHA was over-reaching, with there being no precedent for an agency charged with protecting workplaces to regulate a general social risk not specific to workplaces. Instead, they argued that rules about testing and vaccination should be reserved for the states and private employers, rather than subject to an improper exercise of “police power” by OSHA not clearly and unequivocally delegated by Congress. Finally, challengers argued enforcing the ETS would result in mass worker resignation and catastrophic harm to an economy already suffering from labor shortages and supply chain issues.

OSHA, on the other hand, argued that the OSH Act specifically granted it power to act exactly as it had, a fact underscored in OSHA’s view by Congress’s appropriation of funds to OSHA to address COVID. OSHA argued that vaccination and testing were the most effective and common measures to combat COVID — a fact that diminished what challengers characterized as the extraordinary nature of the ETS. OSHA cited a failure to move forward with the ETS as leading inexorably to thousands of deaths and even more hospitalizations, which would also be harmful to the workforce and the economy.

The Court’s Questions

The bench was extremely active, with every Justice posing at least one question to each side, and several posing many. Justices Kagan and Sotomayor were the most outspoken advocates for the propriety of the ETS, noting the proper use of OSHA’s emergency power to address a grave danger, and questioning why a court should override the considered judgment of an agency with expertise in addressing workplace dangers. Justice Sotomayor analogized that if OSHA could indisputably require masks in workplaces where sparks are airborne, it could likewise enact the ETS where the virus is airborne. And when the states argued that COVID is society-wide and not unique to the workplace, Justice Kagan contrasted an individual’s ability to control risk of exposure to COVID through personal choice outside the workplace with the relative inability to do so at work.

Justices Breyer’s and Alito’s questioning challenged each side on the scope of their positions. Justice Breyer questioned why OSHA could not regulate COVID, when it indisputably could regulate dangers such as a fire, not limited to the workplace. Challengers responded that OSHA’s regulation of fire would have to be tailored to workplaces where fire was a heightened risk. Justice Alito challenged OSHA on the propriety of pushing employees toward something as permanent as vaccination, rather than something limited to taking effect in the workplace.

Justices Thomas and Barrett respectively pressed the challengers and OSHA on what “necessary” meant in terms of enacting an emergency temporary standard. Chief Justice Roberts was balanced in his questioning, challenging both sides on a number of aspects of their argument.

What’s Next?

Given the immediacy of OSHA’s enforcement efforts, it is doubtful the Supreme Court will take long to issue a final decision in this matter. While the Justices raised the possibility of implementing a brief administrative stay to allow them to more fully consider the issue, it would be unsurprising in these time-pressured circumstances to see a decision from the Supreme Court in a matter of weeks.

AGG’s Employment Law Team will continue to provide updates as more news is available.