As we previously blogged, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) which required employers with more than 100 employees to mandate vaccination or weekly testing for its workers. Today, the Supreme Court will hear oral arguments on OSHA’s mandate.
It is important to note that the Supreme Court will not be addressing the issue of whether private employers have the right to voluntarily adopt their own vaccine mandates. As of now, there is no question that this is permitted. Rather, this case is about whether the government can instruct employers to implement such mandates. Specifically at issue is an appeal of the 6th Circuit’s decision to lift a temporary stay of the ETS. As such, the Supreme Court is not actually ruling on the ultimate question of whether OSHA can issue its mandate. Rather, it is ruling on whether the mandate will remain in effect while legal challenges against the ETS play out in the lower courts.
To address this question, the Court will need to predict how likely it is that OSHA will ultimately succeed on the merits. According to the U.S. Solicitor General, OSHA was permitted to issue the ETS because it was necessary to protect employers from a “grave danger.” In response, challengers to the ETS have argued that:
- COVID-19 does not present a grave danger
- The standard is overly broad because the risks posed by COVID-19 are not the same for people of different ages and those with “natural immunity”
- The standard is also underinclusive because it only applies to large employers
- OSHA lacks authority to issue the ETS because the threat of COVID-19 is not workplace specific, but rather a general societal health problem
The Supreme Court is expected to issue its decision in a matter of days. If you have questions about COVID-19, or any other area of employment law, contact Thatcher Zavaro & Mani at 301-850-1246. www.ThatcherLaw.com. Follow us on: