May 25, 2022

Volume XII, Number 145

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May 24, 2022

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May 23, 2022

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Future of OSHA Vaccine-or-Test Mandate Looks Tenuous as Supreme Court Weighs In

In an unprecedented (and fast-paced) move, the U.S. Supreme Court held a hearing today on the consolidated cases challenging OSHA’s Emergency Temporary Standard (ETS), which requires large private employers to impose COVID-19 vaccination or testing requirements on employees. 

The hearing follows closely on the heels of the Sixth Circuit’s decision to lift an earlier stay of the ETS. The Court heard two hours of argument from petitioners representing business organizations and numerous states, which filed emergency applications asking the Court to impose an immediate stay of the OSHA ETS.

The biggest question is which way is the Court leaning? In closely watched Supreme Court cases, Chief Justice Roberts is a strong indicator of which way the Court will side. Based on his questioning and comments today, the Chief Justice seems to believe the federal government has overstepped its bounds in imposing this mandate. Not surprisingly, the Court’s liberal bench wants to see this mandate prevail and survive even a brief stay. Justices Sotomayor, Kagan, and Breyer at times steered the government to specific arguments in response to questions from other Justices, helping its cause in doing so. 

Justices Gorsuch, Kavanaugh, and Barrett focused most of their questioning on whether OSHA, or any federal agency, can lawfully act in this way to impose a vaccine mandate. Justice Gorsuch focused his questions on this issue, repeating the established authority of the states or Congress to expressly require individuals or workers to be vaccinated. 

While a two-hour emergency Supreme Court hearing is certainly unprecedented, employers are still holding their breath and wondering whether they will ultimately have to comply with the ETS. The Court raised the possibility of a brief administrative stay to further evaluate the legal issues, but employers need concrete answers. With the first deadline looming Monday, Jan. 10, whichever way they rule, the Supreme Court will need to be decisive to avoid further regulatory meltdown.

© 2022 BARNES & THORNBURG LLPNational Law Review, Volume XII, Number 7
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About this Author

Jackie Gessner Employment lawyer Barnes Thornburg
Associate

Jackie Gessner is an associate in the Indianapolis office of Barnes & Thornburg, where she is a member of the firm's Labor and Employment Law Department.

Prior to joining Barnes & Thornburg full time, Jackie was a summer associate and a legislative intern in the firm's Indianapolis office. She also served as a pro bono legal clerk in the Criminal Appellate Division of the Office of the Indiana Attorney General.

Upon graduating from Purdue University, Jackie interned with the Indiana State Senate and worked as a campaign manager for a 2010 Indiana...

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