All for naught? SCOTUS and the OSHA 'ETS'

Matthew E. Christoph
BridgeTower Media Newswires


Let’s play a game. I will list four statements. Your task is to identify which statements are made up and which are from amicus briefs in National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration, 2021 WL 5989357 (6th Cir. Dec. 17, 2021), cert. granted, Dec. 22, 2021 (No. 21A244), a case currently before the U.S. Supreme Court.  

First, some background. The 2012 constitutional challenge to the Affordable Care Act, NFIB v. Sebelius, 567 U.S. 519 (2012), drew 136 amicus briefs, a record broken three years later in Obergefell v. Hodges, 576 U.S. 644 (2015) — the landmark same-sex marriage case, which drew 149 amicus briefs. While at the time of writing the National Federation case has 24 docketed briefs, each filing shows another frenzied splash of paint on the Jackson Pollock-like creation surrounding the chaotic national vaccine debate.

National Federation involves the controversial OSHA “vaccine mandate” for American businesses of 100 or more employees. Following the U.S. Food and Drug Administration’s approval of the Pfizer-BioNTech COVID-19 vaccine in August 2021, President Biden directed OSHA to issue a regulation requiring private sector employers with 100 or more employees to mandate employees either get an approved COVID-19 vaccine or produce a negative test result on a weekly basis.

The directive prompted fierce opposition, including from South Carolina’s governor, who tweeted: “Rest assured, we will fight them to the gates of hell to protect the liberty and livelihood of every South Carolinian.”  

So, back to our game and the four statements:

“OSHA and other federal agencies are mandating the administration of an experimental product that has not been approved by the FDA. In fact, none of the approved ‘vaccine’ is available in the United States.”

“The healthy young and middle age are at a statistical zero risk of death. In addition, the more recent Omicron strain is even milder, and typically clinically indistinguishable from the common cold … the evidence establishes that natural immunity acquired by those who have been infected with and recovered from Covid-19 acquire complete and lifelong immunity.”

“[B]ased on the current state of ‘science,’ an OSHA regulation that limited the access of vaccinated persons to the workplace would make more sense than the rule it promulgated.”

“Ivermectin — a cheap, safe, widely available generic medication, whose precursor won the Nobel Prize in Medicine in 2015 — treats and cures Covid-19 in both the early infectious stage and later stages.”

Can you identify which quote is fake? Did Joe Rogan suddenly go to law school and become an appellate advocate? Unfortunately, every quote above is real and part of the array of docketed submissions to the U.S. Supreme Court from various groups, including Defending the Republic, Inc., America’s Frontline Doctors, and the Center for Medical Freedom.  

The history of the OSHA “ETS” is illuminating to understand the current debate. On Nov. 5, 2021, OSHA published an emergency temporary standard, or ETS, to address “extraordinary and exigent circumstances” and required employers with 100 or more employees to select one of two workplace precautions to mitigate the danger of COVID-19 transmission in workplaces: a vaccination policy for all employees or a vaccination-or-testing policy in which employees may opt out of vaccination if they complete weekly testing and wear a face covering.

The weekly testing requirement is onerous. The test cannot be self-administered and self-monitored. A simple at-home PCR test will not suffice unless monitored by the employer or an authorized telehealth proctor, or digitally read. In addition to the proctoring requirement, businesses do not need to pay for their employee’s testing, subject to state and federal laws including the Americans with Disabilities Act and Title VII.  

OSHA also established staggered compliance deadlines, providing 60 days to implement the testing requirements and 30 days to implement all other requirements. Employees who work exclusively at home, alone or outdoors (with de minimis use of shared indoor spaces) are exempted.  

As South Carolina’s governor tweeted, considerable gates-of-hell-type fighting ensued after the ETS was first issued. In the week following OSHA’s publication of the standard, a number of states and private parties — including Alabama, Alaska, Arizona, Arkansas, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming — filed petitions for review in every federal appeals court. 

Those filings also triggered a unique federal mechanism for consolidation of cases. Specifically, Congress directed that all such petitions be transferred and consolidated in a single appeals court, to be chosen by “lottery.” The lucky winner of the lottery was the 6th U.S. Circuit Court of Appeals, based in Cincinnati.  

Shortly before the transfer, however, the 5th Circuit entered a stay of enforcement of the OSHA standard pending judicial review of the case. However, the 6th Circuit then issued a 2-1 decision dissolving the stay on Dec. 17, 2021. Writing for the majority, Judge Jane Stranch noted that COVID-19 poses a “grave danger” to workers given extensive empirical data showing high rates of workplace transmission and the substantial number of deaths and serious illnesses caused by COVID-19. 

The court also held that OSHA has authority to address virus transmission in the workplace based on the statutory text and the agency’s history of regulating other pathogens. In her concurrence, Judge Julia Gibbons wrote that “[r]easonable minds may disagree on OSHA’s approach to the pandemic, but [courts] do not substitute [their] judgment for that of OSHA, which has been tasked by Congress with policymaking responsibilities.” 

In response to the 6th Circuit’s decision, OSHA quickly moved forward with implementing the emergency temporary standard, including requiring businesses to maintain testing and vaccination records, paid time off for vaccination and any side effects, and employee notice requirements by Jan. 10, 2022.  

At the time of this writing, businesses must begin testing and implementing the vaccine or test-and-mask mandates by Feb. 9.

As every lawyer in America predicted and South Carolina’s governor promised, the parties continued their battle and filed for certiorari with the Supreme Court. Although the ETS was set to take effect on Jan. 10, Justice Brett Kavanagh referred the case to the full court for oral arguments on Jan. 7. 

Importantly, the Supreme Court did not issue an administrative stay prior to the oral arguments. This means that the OSHA rule will take effect and American businesses, spending considerable time and expense to ensure compliance, must be compliant even if the Supreme Court issues a decision staying the rule. The horses are already out of the barn.  

While Justice Samuel A. Alito floated the idea of an administrative stay during oral arguments on Jan. 7, at the time of this article going to print, the Supreme Court had not taken any action. Whatever action the members of the court take — each of whom is fully vaccinated and boostered — is of little affect to the OSHA rule’s immediate impact and President Biden’s larger goal of increased vaccination rates across America.   

All businesses with 100 or more employees — which is 84 million workers or two-thirds of private employers — should already be complying with the requirements given the Jan. 10 deadline. 

While a Supreme Court decision may diminish testing obligations for certain businesses or stay the rule — or speak to larger constitutional issues including the Major Questions Doctrine, state police power, and Chevron deference — many businesses will remain compliant in order to ensure their workplaces remain open, their employees safe, and their customers can continue to utilize their businesses. 

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Matthew E. Christoph is corporate counsel at Bright Horizons Family Solutions based in Newton. The views expressed above are his own and do not express those of his employer.