COVID-19 News, TOP STORY—Biden Administration working uphill battle at arguments on OSHA ETS, (Jan 10, 2022)

By Pamela Wolf, J.D.

Many Justices expressed concern about OSHA’s regulatory authority for what they see as a sweeping, unprecedented mandate.

On January 7, 2021, the Supreme Court heard arguments in a pair of consolidated cases (Nos. 21A244 and 21A247) that challenge OSHA’s authority to issue its November 5, 2021, interim final rule imp ...

By Pamela Wolf, J.D.

Many Justices expressed concern about OSHA’s regulatory authority for what they see as a sweeping, unprecedented mandate.

On January 7, 2021, the Supreme Court heard arguments in a pair of consolidated cases (Nos. 21A244 and 21A247) that challenge OSHA’s authority to issue its November 5, 2021, interim final rule imposing an emergency temporary standard (ETS) to protect employees of large employers “from the risk of contracting COVID–19 by strongly encouraging vaccination.” In both cases, the applicants are asking the Justices to stay enforcement of OSHA’s ETS. Many of the Justices questioned OSHA’s authority to issue what has been perceived as a very broad, sweeping mandate that reaches conduct both in and outside the workplace.

The applicants will need to show a likelihood of success on the merits of their appeal and irreparable harm, among other things, to obtain a stay from the High Court. The Court also contemplated an administrative stay that would give the Justices some time to sort through the issues.

About the ETS. Under the ETS, employers with at least 100 employees are required to develop, implement, and enforce a mandatory COVID-19 vaccination policy, or to instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering in lieu of vaccination. The ETS also requires employers to provide paid time off for workers to get vaccinated and to allow for paid leave to recover from any side effects.

The interim final rule, among other things, also requires employers to:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status;

  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis and to remove the employee from the workplace, regardless of vaccination status, and not permit them to return to work until they meet required criteria;

  • Ensure that each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer); and

  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Compliance deadlines. Amid a storm of controversy and court challenges that quickly followed, OSHA subsequently eased the ETS compliance dates. Most recently, the agency has said that it will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and will not issue citations for ETS testing requirement violations before February 9, 2022, so long as the employer “is exercising reasonable, good faith efforts to come into compliance with the standard.”

According to OSHA’s frequently asked questions (FAQs) about the ETS, which the agency has periodically updated, employers are required to do the following by January 10, 2022 (Paragraph 12(m), Question 12A):

  • Establish a policy on vaccination;

  • Determine vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records and roster of vaccination status;

  • Provide support for employee vaccination;

  • Require employees to promptly provide notice of a positive COVID-19 test or a COVID-19 diagnosis;

  • Remove any employee who received a positive COVID-19 test or a COVID-19 diagnosis;

  • Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes;

  • Provide each employee information about the ETS, workplace policies and procedures, vaccination efficacy, safety and benefits, protections against retaliation and discrimination, and laws that provide criminal penalties for knowingly supplying false documentation;

  • Report work-related COVID-19 fatalities to OSHA within eight hours and work-related COVID-19 in-patient hospitalizations within 24 hours; and

  • Make certain records available.

By February 9, employers are required to ensure that employees who are not fully vaccinated are tested for COVID-19 at least weekly if they are in the workplace at least once a week, or within seven days before returning to work if they are away from the workplace for a week or longer.

Stay entered and then dissolved. Below, the Fifth Circuit stayed the ETS pending judicial review. On November 16, 2021, the Sixth Circuit was randomly selected to review the petitions filed in federal appeals courts following the issuance of OSHA’s ETS. On December 17, 2021, in In re: MCP No. 165. Occupational Safety &Health Administration Final Rule: COVID-19 Vaccination and Testing, the Sixth Circuit dissolved the stay for large employers. At the Supreme Court, application for a stay was presented to Justice Kavanaugh in Ohio v. Department of Labor, Occupational Safety and Health Administration. The stay was deferred pending oral argument.

In National Federation of Independent Business v. Occupational Safety and Health Administration (No. 2A244), 26 trade associations challenge the ETS and seek a stay of enforcement. The application in In Re: Occupational Safety And Health Administration, Interim Final Rule: Covid-19 Vaccination And Testing; Emergency Temporary Standard 86 Fed. Reg. 61402, Issued On November 5, 2021 (No. 2A247), filed by 27 states and a large group of individuals and organizations that include business associations and unions, also seeks a stay, but alternatively asks the court for a writ of certiorari before judgment.

Reasons for granting a stay. To support their request for a stay, the applications collectively cite reasons that include the square conflict between the Fifth and Sixth Circuits, the enormous impact of the ETS, and the purported unlawfulness of the ETS in exceeding OSHA’s authority.

In terms of the likelihood of success on the merits the applicants argue that for the following reasons, the ETS exceeds OSHA’s statutory authority including that:

  • OSHA could have initiated notice-and-comment procedures months ago instead of imposing an immediately effective “emergency” rule, and thus the unusual procedure is not “necessary”;

  • Under the major-questions doctrine, Congress did not give OSHA “unprecedented” power to overhaul the American economy via an emergency, temporary standard;

  • COVID-19 is not an occupational danger that OSHA may regulate;

  • The ETS is not a “temporary” response to an “emergency”; and

  • COVID-19 does not present the type of “grave” danger required under the statute upon which OSHA relied.

The applicants contend that they can also establish irreparable harm and that the balance of equities also favors a stay.

Is success on the merits likely? Pushing back, the Biden Administration has argued that the request for a stay should be denied because the applicants have failed to demonstrate a likelihood of success on the merits, much less an “indisputably clear” right to relief.

The applicants are unlikely to succeed on the merits of their statutory and constitutional challenges to the ETS, which they have repeatedly mischaracterized as a “vaccine mandate,” according to the federal government. The OSH Act provides that OSHA “shall” issue an ETS if the agency “determines” that an ETS is “necessary” to protect employees from a “grave danger” resulting from, among other things, exposure to “physically harmful” “agents” or “new hazards.”

Here, the Administration asserts that OSHA properly determined that:

  • SARS-CoV-2 is both a physically harmful agent and a new hazard;

  • Exposure to that potentially deadly virus in the workplace presents a grave danger to unvaccinated employees who are at greatest risk of contracting and spreading the virus at work and suffering serious health consequences as a result; and

  • The Standard is necessary to protect those employees from the danger of contracting COVID-19 at work.

“Confronted with the deadliest pandemic in the Nation’s history, which has infected more than 50 million and killed more than 800,000 people in the United States alone, OSHA found that workers are becoming seriously ill and dying because they are exposed to the virus that causes COVID-19, SARS-CoV-2, on the job—including in widespread and well-documented workplace clusters and outbreaks,” OSHA wrote. “OSHA further determined that effective disease-control measures that have already been implemented by many employers around the country to reduce occupational exposure to SARS-CoV-2 would largely prevent those serious illnesses and deaths, saving thousands of lives and preventing hundreds of thousands of hospitalizations in the next six months alone.”

Arguments. At oral argument, OSHA’s authority to issue the ETS was front and center, with questions focusing on whether Congress contemplated the agency issuing such an ETS under the OSH Act, the fact that the agency has never before issued a “vaccination mandate,” whether the ETS actually targets a workplace hazard or is too broad because it also regulates conduct outside the workplace, and who should decide what’s in the public interest here—the Executive Branch, Congress, or the States.

Was emergency action necessary? Many of the arguments addressed the meaning of “grave danger” and “necessary.” Generally, there was more consensus that the current level of COVID infection, hospitalization, and death poses a “grave danger,” but less agreement on the question of whether it was “necessary” for OSHA to address that danger in an emergency action. In the emergency context, there is a heightened standard of “necessary” that applies as opposed to the standard OSHA is required to meet in other contexts, as Justice Thomas noted.

Justice Thomas asked attorney Scott A. Keller of Lehotsky Keller LLP, who argued for the National Federation of Independent Business and other applicants (No. 21A244), how “necessary” it must be for OSHA to issue an emergency temporary standard—what are the factors that must be considered?

The first factor, according to Keller, is whether it is an “indispensable or essential” measure.

During the colloquy that ensued, Justice Thomas clarified, “So the fact that it is temp—that’s it’s emergency sort of ups the ante, that ‘necessary’ has to be more restrictive?”

Keller agreed.

Justice Kagan interjected, “I don't understand the point. Whatever ‘necessary’ means, whether it’s necessary and proper or whether it’s something more than that, why isn’t this necessary to abate a grave risk?”

“This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century,” Justice Kagan continued. “More and more people are dying every day. More and more people are getting sick every day. I don't mean to be dramatic here. I’m just sort of stating facts. And this is the policy that is most geared to stopping all this. There’s nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves.”

Answering the Justice’s question as to why the situation isn’t necessary and grave, Keller said, “the standard for what would be necessary for this extraordinary use of emergency power is not what is the best way of accomplishing it.”

Does major-questions doctrine apply? One issue that the Justices targeted is whether the plain text of the OSH Act authorizes the issuance of the ETS. The applicants argue that Congress did not give OSHA “unprecedented” power to overhaul the American economy via an emergency, temporary standard. They contend that because the ETS raises a “major question” of economic and political significance, Congress should be forced to make a “clear statement” authorizing an ETS addressing widespread work-place exposure to COVID-19 or incorporating vaccination as a method to reduce the risks of exposure.

Here, Elizabeth B. Prelogar, Solicitor General, Department of Justice, Washington, D.C., arguing for the federal government, noted among other things, that the OSH Act itself specifically contemplates that “immunization” may be required where necessary to protect workers. “It is the single most effective way to target the spread of a deadly virus and to think that Congress would have meant to preclude OSHA from encouraging vaccination, I think, is inconsistent, both with the text of the statute and with the broader history of immunization requirements in this country, which have commonly been imposed,” she argued.

Size and scope. Keller argued that the size and the scope of the ETS, covering two-thirds of the private workforce, was too sweeping, not just targeted to industries and workplaces that OSHA had recognized to have a heightened risk. Keller also pointed out that OSHA itself had determined that 1 to 3 percent of workers would quit when the ETS is imposed.

He argued that OSHA does not have the power to take economy-wide action.

Benjamin M. Flowers, Solicitor General Columbus, Ohio, arguing for Ohio and the other States and applicants (No. 21A247), called the ETS “a blunderbuss rule, nationwide in scope, that requires the same thing of all covered employers, regardless of the other steps they’ve taken to protect employees, regardless of the nature of their workplaces, regardless of their employees’ risk factors, and regardless of local conditions that state and local officials are far better positioned to understand and accommodate.”

Justice Alito also observed that the ETS differs from what OSHA has done in the past because it affects both work and outside of work. “Most OSHA regulations, all of the ones with which I’m familiar, affect employees when they are on the job but not when they are not on the job,” he observed. “And this affects employees all the time. If you're vaccinated while you’re on the job, you’re vaccinated when you’re not on the job. Isn’t this different from anything OSHA has done before in that respect?”

After pointing out that there is also a mask and test option, Prelogar acknowledged that, focusing only on vaccination, the Justice had described it one way. “But OSHA was directly targeting... and trying to provide the protection at work and I don’t think there’s any basis in the text of the statute to think this kind of... protection is off limits,” she said argued.

Who should decide? A fundamental question raised throughout the argument session was who should be taking action—OSHA, Congress, or the States? Justice Sotomayor reminded Keller that some states are preventing employers from requiring employees to be vaccinated or wearing masks.

“Why shouldn’t the federal government, which it has already decided in OSHA... Congress has decided to give OSHA the power to regulate workplace safety, have a national rule that will protect workers?”

According to Keller, Congress would have to clearly state in a statute that it wanted to give an occupational health agency the power to require employees to get certain medical treatment.

After clarifying that there is no vaccination requirement and that the ETS is not a mandate, Justice Sotomayor said she didn’t know how much clearer Congress could be. “It charges OSHA with developing innovative methods, techniques, and approaches to dealing with occupational safety—occupational safety and health issues.”

Justice Kagan agreed that the big question is who decides but said she would have a different answer than Keller would put forth. She noted that the agency has the experts and political accountability, through the president and elections. Courts can decide, but they have no epidemiological expertise and are not politically accountable.

Keller acknowledged that Congress and states and governors wielding emergency power are the ones that have the power over vaccines. “The idea that OSHA would be the agency in the federal government that’s not even under the Department of Health and Human Services, that does not have expertise over communicable diseases like the FDA or CDC maybe, that would just be a very odd place for Congress to... lodge such a sweeping power over the American people,” he said.

Work-around? The question of whether the ETS is a “work-around” for Congress’ failure to act, was raised by Chief Justice Roberts. He said that as more and more mandates pop up, why didn’t Congress Act?

According to Prelogar, Congress did act, when it passed the OSH Act and gave authority to OSHA.

Noting that Congress acted 50 years ago in passing the OSH Act, Justice Roberts said, “I don’t think you had COVID in mind. That was almost closer to the Spanish Flu than it is to today’s problem.”

Is a stay in the public interest? Justice Breyer, underscoring the critical nature of the pandemic, noted that there were nearly three-quarters of a million new cases the day before arguments—10 times the number of cases as when OSHA issued the ETS. “The hospitals are today, yesterday, full, almost to the point of the maximum they’ve ever been in this disease, okay?”

“How can it be in the public interest, which is a requirement, how can it be a balance of harms in this case, assuming the arguments aren’t off the wall on the government’s side, and believe me, they’re not,” queried Justice Breyer.

Answering, Keller said that state and private businesses can act. “This is going to cause a massive economic shift in the country, billions upon billions of non-recoverable costs,” he suggested. “Testing also is not frequently available.”

“The question is not what is this country going to do about COVID,” according to Keller. “It’s who gets to decide that.”

As to whether an administrative stay should be entered immediately while the Justices take time to decide the application requests, Justice Breyer pointed to the consequences of delaying the ETS, scheduled for implementation on January 10: “So if we delay it a day, and if it were to have effect, then 750,000 more people will have COVID who otherwise, if we didn’t delay it, wouldn’t have? I mean, I—I don't doubt the power of the Court to issue a stay. I’m just saying what are the consequences of that?”

Attorneys: Scott A. Keller (Lehotsky Keller LLP) for National Federation of Independent Business and other applicants in No. 21A244. Benjamin M. Flowers, Solicitor General Columbus, Ohio, for Ohio and the other States and applicants in No. 21A247. Elizabeth B. Prelogar, Solicitor General Department of Justice, Washington, D. C., for OSHA and the other respondents.

The applications are Nos. 21A244 and 21A247.

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