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Supreme Court to Consider Arguments on Pulling Plug on OSHA COVID-19 ETS

The U.S. Supreme Court has scheduled expedited arguments on the  U.S. Court of Appeals for the Sixth Circuit’s decision to lift the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).

The ETS mandated COVID-19 vaccination or voluntary vaccinations with testing and masking for unvaccinated employees for employers with at least 100 employees. The Court will hear oral arguments from petitioners and OSHA on January 7, 2022, three days before OSHA will begin enforcement efforts.

Judge Jane B. Stanch authored the Sixth Circuit decision to lift the stay. She asserted that OSHA “must be able to respond to dangers as they evolve” such as a spreading virus with emerging variants. OSHA followed the Sixth Circuit decision with an announcement that it will not issue citations for noncompliance with the ETS before January 10, 2022. The agency also stated it will exercise its discretion and not issue citations for noncompliance with testing requirements under the ETS before February 9, 2022, provided an employer is exercising reasonable, good faith efforts to come into compliance with the standard. The agency has also given OSHA State Plans until January 7, 2022, to announce their intentions on adoption of the ETS and move forward with adoption by January 24, 2022.

Multiple parties, including 27 states, filed emergency motions with the Supreme Court to block enforcement efforts following the Sixth Circuit decision. They emphasized the irreparable harm they will suffer in having to implement the ETS, citing labor shortages, the unavailability of tests, and the unintended consequence of having to lay off vaccinated workers to absorb the costs of compliance. In addition to the challengers’ concerns about economic viability of their businesses, they argued their likelihood of success in enjoining the standard on the merits and balance of equities weigh in favor of a stay. These petitioners also have asked the Supreme Court for a rare grant of their requested alternative relief: granting review before judgment by the lower court and deciding the legality of the OSHA ETS on the merits. They claim this is appropriate and necessary, given the importance of the issues, for the high court to weigh in on questions about the structure of government and OSHA’s authority over the economy. They argue that the Supreme Court must act now because, given the six-month life of an ETS, the case could become moot by the time the Court has the opportunity to review the issues if the case progresses normally.

Friend-of-the-court briefs have been filed by the Washington Legal Foundation and three former OSHA assistant secretaries of labor on both sides of the issue. The Washington Legal Foundation, a non-profit public interest law firm and policy center, argues the ETS will have dire effects on the economy, which already is suffering from supply chain issues and labor shortages, as well as OSHA’s failure to follow proper notice and comment rulemaking for 21 months. The former OSHA officials weighing in are Gerard Scannell (under George W. Bush), Charles Feddress (under Bill Clinton), and Dr. David Michaels (under Barack Obama). They argue the Court should deny the stay of the OSHA ETS and that OSHA is well within its authority to issue the ETS.

The emergency appeals were assigned initially to Justice Brett Kavanaugh, who directed OSHA to provide briefs in support of its argument by December 30, 2021. Justice Kavanaugh then referred the matter to the full Court for review. In addition, the Court will hear oral arguments on a stay of the Centers for Medicare and Medicaid Services (CMS) Vaccine Mandate for covered providers who participate in the Medicare and Medicaid government programs and others covered by the CMS Vaccine Mandate.

The Sixth Circuit has yet to hear, let alone to decide, the case on the merits, and has not considered the arguments of the petitioners, including arguments over whether the ETS overrides state or local laws due to federal preemption. Meanwhile, Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia have enacted measures that would restrict or impact vaccination requirements.

Jackson Lewis P.C. © 2023National Law Review, Volume XI, Number 358

About this Author

Courtney Malveaux, OSHA Lawyer, Employment, Richmond, Virginia, Jackson Lewis Law Firm

Courtney Malveaux is a Principal in the Richmond, Virginia, office of Jackson Lewis P.C.

Mr. Malveaux represents employers cited by the Occupational Safety and Health Administration and other regulatory agencies. He also advises and represents employers in employment law matters, including retaliation claims, employment discrimination, unemployment benefits and wage claims. Mr. Malveaux also represents business associations in state and federal legislative and regulatory matters.

Mr. Malveaux represents industry on the Virginia Safety and...

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...

Patricia Anderson Pryor, Class Action, Litigator
Principal and Office Litigation Manager

Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented...

Catherine A. Cano, Jackson Lewis, Federal Disability Lawyer, Retaliation Matters Attorney

Catherine A. Cano is an Associate in the Omaha, Nebraska, office of Jackson Lewis P.C. She represents management in all areas of labor and employment law. 

Ms. Cano helps clients navigate state, federal, and local leave and disability laws. Ms. Cano has experience in litigation and arbitration in several areas, including employment discrimination, retaliation and whistleblower claims, and non-competes and unfair competition. Ms. Cano’s practice also includes assisting clients involved in union organization campaigns, collective bargaining,...

Katharine Weber, JacksonLewis Law Firm, Labor and Employment Attorney

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...