Supreme Court of the United States Hears Oral Argument to Stay OSHA’s Large Employer Workplace Vaccine / Testing Mandate

On Friday, January 7, 2022, parties challenging OSHA’s Emergency Temporary Standard (“ETS”) made their case to the Supreme Court requesting it delay enforcement of OSHA’s ETS requiring mandatory employee vaccination or weekly testing for employers with over 100 employees.  After some on-again, off-again delays by lower courts and OSHA itself, the ETS is set for phased in enforcement starting January 10, 2022.  Most of the argument involved responding to specific questions from many of the nine Justices.   Like most oral arguments, the questioning moved quickly from one issue to another and sometimes back again.

The argument ​began with questions about pandemic specific issues related to deaths and hospital counts and then moved to the drier issues of agency rule making, separation of powers, state’s rights, statutory and regulatory interpretation and other more “legal” issues.  In the end, no topic dominated and the Court will end up considering the entire amalgam of not only the ETS’ provisions in light of OSHA’s statutory authority, but the alleged “emergency” situation and the highly contentious pandemic situation as whole.

Although the challengers are requesting a permanent stay of the ETS for various reasons, the Court raised the possibility of a short administrative stay while it considers the issues raised by all parties.  Both sides seemed disappointed at such a suggestion but wisely agreed that the Court had the discretion to do so.

The employment lawyers at DeWitt advise that, at present, the oral argument doesn’t change anything until, and if, the Supreme Court issues a decision on the challengers’ request.  The ETS becomes effective January 10, 2022.  Therefore, our earlier advice remains;  by January 10, 2022, employers falling under the ETS should continue, or quickly begin, taking action to comply with the ETS. This means such employers should:

• have determined the vaccination status of their employees;
• start providing the ETS-required support for employee vaccination;
• start/continue requiring that unvaccinated employees wear face coverings in the workplace;
• institute the written vaccination/testing policy required by the ETS; and
• start/continue requiring employees to promptly inform them of any COVID-19 diagnosis or positive test result, among other obligations.

In addition, subject employers that choose to provide the testing option to unvaccinated employees (as opposed to mandating vaccination) must begin weekly testing in compliance with the specifics of the ETS no later than February 9, 2022 (as opposed to January 3, 2022).

The landscape of this situation continues to change on weekly, or day-to-day, basis.  Of course, once the Supreme Court rules, we will quickly and thoroughly review its decision and promptly supplement our earlier posts.

If you have any questions, please contact your DeWitt lawyer or any other member of DeWitt’s Labor and Employment practice group.