January 28, 2023

Volume XIII, Number 28

Advertisement

January 27, 2023

Subscribe to Latest Legal News and Analysis

January 26, 2023

Subscribe to Latest Legal News and Analysis

January 25, 2023

Subscribe to Latest Legal News and Analysis

SCOTUS Questioning Suggests OSHA ETS is Squeezing an Elephant into a Mousehole

The U.S. Supreme Court heard oral arguments today in the OSHA ETS case.  Of course one never knows how the Court will rule, but if the Justices’ questions are any indication, there could be a 6-3 split in favor of a stay, with Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett voting in favor and Justice Breyer, Justice Kagan, and Justice Sotomayor dissenting.

All parties made very short opening remarks and then invited the Justices’ questions.  The common theme on which Justice after Justice questioned the parties was not whether vaccinations are helpful in the fight against COVID-19 or whether mandates are lawful generally, but who gets to decide these public health questions?  Much of the questioning and arguments focused on the major question doctrine, what factors determine when to invoke that doctrine, and whether Congress specifically delegated authority to OSHA to legislate the ETS at issue.  As the petitioners challenging the ETS argued, the OSHA ETS is a wide-sweeping workplace rule, not tailored to any particular industry and issued without consideration of specific levels of risk in different work environments.  They argued that the extraordinary power of an emergency rule requires that the rule have more precision, based on an industry-by-industry analysis.  The Solicitor General argued that Congress lawfully delegated the authority to OSHA to issue the ETS when it enacted the Occupational Safety and Health Act of 1970 (the “OSH Act”), the ETS is necessary to protect unvaccinated workers from grave danger due to COVID-19, and that given the ongoing pandemic OSHA considered and properly balanced the various competing interests.  The current surge in COVID-19 cases created a backdrop against which the Solicitor General and several of the Justices expressed concern over issuing a stay.

During the arguments, Chief Justice Roberts questioned the Solicitor General on whether the government was “working across the waterfront” with multiple federal agencies and executive branch actions to legislate #covid19 workplace rules—noting the Center of Medicare and Medicaid Services (CMS) and federal contractor executive order vaccine mandates—without giving Congress a say or acknowledging states’ police powers.  He also expressed doubt that Congress envisioned OSHA having this much power or anticipated the likes of a COVID-19 pandemic when granting OSHA authority under the OSH Act more than 50 years ago.

Justice Alito suggested that with the ETS, the government was trying to “squeeze an elephant through a mousehole,” questioned the Solicitor General about people’s personal medical decisions about vaccination, and questioned whether regular COVID-19 testing was even a viable option at this point.

Justice Breyer expressed concern about the growing number of daily cases, noting that yesterday the nation had around 750,000 new cases.  Petitioners argued however, citing Alabama Assoc. of Realtors, et al. v. HHS, 594 U.S. _____ (2021) (CDC eviction moratorium decided by the High Court August 26, 2021), that while combatting the spread of COVID-19 is a noble goal, no matter how well-intentioned, the ends cannot justify the means when those means are unlawful.

Whatever the outcome, it needs to come fast because employers need clarity.

Jackson Lewis P.C. © 2023National Law Review, Volume XII, Number 7
Advertisement
Advertisement
Advertisement

About this Author

Melanie L. Paul Trial Attorney Jackson Lewis Atlanta, GA
Of Counsel

Melanie L. Paul is Of Counsel in the Atlanta, Georgia office of Jackson Lewis P.C.  Her practice focuses on occupational safety and health and wage and hour issues.  Ms. Paul’s clients benefit from her unique inside experience as a trial attorney for the U.S. Department of Labor (DOL) for more than a decade. 

During Ms. Paul’s time with the DOL, she regularly appeared at hearings and trials before federal administrative tribunals and federal district courts throughout the southeastern United States in matters of Occupational Safety and Health (OSHA) law, Mine...

404-586-1869
Katharine Weber, JacksonLewis Law Firm, Labor and Employment Attorney
Principal

Ms. Weber has experience litigating wrongful discharge cases; managing discrimination cases; negotiating collective bargaining agreements; representing employers before the Equal Employment Opportunity Commission and other federal, Ohio and Kentucky agencies; advising management on employment relations; drafting employee handbooks; and negotiating severance agreements.

Ms. Weber regularly advises clients on wage and hour issues. Over the past five years she has served as lead counsel on various wage and hour class and...

513-898-0050
Advertisement
Advertisement
Advertisement