Justices Seem Divided on OSHA's Authority to Issue Vaccine-or-Testing ETS

[Update: The Supreme Court halted OSHA's ETS on Jan. 13, and OSHA officially withdrew the rule, effective Jan. 26.]

Opponents of the Biden administration's COVID-19 vaccine-or-testing rule for private employers asked the U.S. Supreme Court to quickly halt the directive during recent oral arguments, but the justices had yet to issue an order as of Jan. 10 when many of the requirements under the Occupational Safety and Health Administration's (OSHA's) emergency temporary standard (ETS) took effect. Employers should note, however, that the directive for unvaccinated workers to undergo weekly testing has been delayed to Feb. 9.

The federal government argued before the high court on Jan. 7 that Congress gave OSHA the power to take emergency action, and that even a brief administrative stay while the court considers the arguments could have significant consequences as COVID-19 cases and hospitalizations continue to surge. 

Businesses with at least 100 employees must require unvaccinated workers to wear masks starting on Jan. 10. Covered employers must also prepare a written COVID-19 vaccine-or-testing policy. Businesses also must ask about the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain a list of employees and their vaccination statuses. 

Unless the high court pauses the rule, covered businesses have until Feb. 9 to ensure that all unvaccinated employees undergo COVID-19 testing on at least a weekly basis and refrain from entering the worksite if they test positive.

"The court clearly appreciates the magnitude, gravity and urgency of this issue, with nearly all the justices stipulating that this is an emergent situation and citing COVID case volumes, the lack of available testing, and the total human impact the pandemic has had and continues to have," observed Ian Carleton Schaefer, an attorney with Loeb & Loeb in New York City. "Their questions focused on the practicalities of both the rising number of cases in recent days, as well as the challenges to testing given the lack of availability and costs associated therewith."

Schaefer said he expects some sort of ruling by no later than the Feb. 9 testing deadline, if not sooner.

In the meantime, Jim Paretti, an attorney with Littler in Washington, D.C., said employers should be "thinking about how vaccination, testing, masking and remote work may or may not be a part of their operating strategy."

The high court also heard arguments about whether the Centers for Medicare & Medicaid Services (CMS) exceeded its authority by issuing an emergency regulation requiring health care workers to be vaccinated.

OSHA's Authority

"There was a clear divide in the justices' thinking as to who has the authority to issue these emergency rules," Schaefer said.

OSHA has the authority to issue emergency temporary standards only if it can show both of the following factors:

• Employees are exposed to grave danger from the hazard.
• The ETS is necessary to protect employees from that danger.

Robert Duston, an attorney with Saul Ewing Arnstein & Lehr in Washington, D.C., noted that Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor all focused on the extreme risks presented in the workplace by unvaccinated workers, as well as OSHA's expertise in mitigating workplace hazards.

"Justice Breyer, in particular, was very focused on the rapid increase in omicron infections," Paretti noted. Breyer said he would find it "unbelievable that it would be in the public interest to stop these vaccinations."

The three justices who are considered "potential swing votes" (Chief Justice John Roberts Jr. and Justices Brett Kavanaugh and Amy Coney Barrett) pushed each side to explain whether Congress needs to be more specific in authorizing an agency to take certain kinds of actions, Duston observed.

"They pointed out that the 50-year-old [Occupational Safety and Health Act] does not clearly give OSHA authority over a national vaccination policy, and this is an area traditionally left to state or local police powers," he said.

The justices asked many questions across the board about the traditional standards for a stay, including balancing of risks and the public interest, as well as likelihood of success on the merits. Justice Samuel Alito Jr. raised the possibility of a brief administrative stay of a few days to give the court an opportunity to consider the issues.

Julie Werner, an attorney with Lowenstein Sandler in New York City, noted that, even if the court decides that OSHA is not the right entity to enforce a vaccine-or testing directive, such policies for specific industries—from private employers and at the state or local levels—may apply.

The court has consistently upheld vaccination mandates at the state level and from private employers. Additionally, the justices seemed more inclined to uphold the CMS vaccination directive for staff employed at Medicare- and Medicaid-certified providers and suppliers. Roberts noted during oral argument in the CMS case that the Spending Clause of the U.S. Constitution gives the secretary of health and human services authority "to impose requirements that … the secretary finds are necessary in the interest of the health and safety of patients." 

Tips for Employers

As employers wait for the Supreme Court to weigh in, they should note that OSHA has been given the green light from the 6th U.S. Circuit Court of Appeals to proceed with the rule. As of Jan. 10, employers need to have policies in place, enforce masking requirements and comply with other obligations, Duston explained. Employers that choose to offer employees the option of testing do not need to start that until Feb. 9.

If the Supreme Court does not block the ETS, employers who have not started to implement the directive will leave themselves open to complaints and investigations, he noted.

However, given the broad scope of the rule and OSHA's enforcement capacity, Duston thinks OSHA will likely consider an employer's good-faith efforts to comply and said that covered employers are unlikely to see many citations in the next month unless they simply refuse to comply.

"But if employers have not already gotten their policies and procedures ready, if a stay is not granted in the next few days, they are going to need to race to catch up," he warned. 

Regardless of how the Supreme Court rules, Werner said employers should evaluate their current pandemic-related safety rules and decide whether they are working or need to be adjusted.

"Companies have given a lot of thought to what they can do to make responsible decisions that work for their employee populations, and they should continue to do so," she said.