Frederick G. Sandstrom and Nicole N. Wentworth
On Friday, January 7, 2022, the United States Supreme Court held oral argument on the Occupational Safety and Health Administration’s (“OSHA”) much-litigated “vaccinate or test” Emergency Temporary Standard (“ETS”). Absent action by the Court, compliance with the ETS is set to commence today, Monday, January 10, though OSHA has said it will not issue citations to employers who have made a good faith attempt to comply with the testing requirements. The Court is expected to issue a decision promptly.
The argument was originally scheduled for one hour but ran nearly two hours due to extensive questioning by the justices. The Court’s six conservative-leaning justices all appeared skeptical of the enforceability of the ETS, but their questions suggested a divide in the legal basis for their views. Justices Thomas, Alito, and Gorsuch’s questioning suggested that they viewed the mandate as clearly outside OSHA’s authority to regulate workplace safety. Justices Roberts, Kavanaugh, and Barrett suggested a narrower view in their questioning, indicating that they may see OSHA as having the authority to impose a narrower emergency mandate targeted at specific fields or industries that present unique safety risks. Justices Roberts, Kavanaugh, and Barrett also suggested that only Congress has the power to impose a broad federal vaccine mandate (like the current ETS) and that in the absence of congressional action, the power to impose an economy-wide mandate was reserved to the states. The Court’s liberal-leaning justices—Justices Breyer, Sotomayor, and Kagan—all expressed strong support for the ETS in their questioning.
During questioning, Justice Alito asked the Solicitor General (representing the federal government) if there was any objection to a brief administrative stay of the January 10 compliance deadline pending the Court’s decision on the appeal. The Solicitor General largely conceded that a brief stay would be appropriate.
We will post a prompt update when the Court issues a decision on the ETS appeal. In the meantime, covered employers should continue to proceed with good faith preparations to implement the requirements of the ETS.