Supreme Court Confronts OSHA ETS

By Charles P. Keller, Sunny J. Thompson, Gina L. Miller and Brett W. Johnson

In a specially scheduled oral argument today, the U.S. Supreme Court heard two issues involving the OSHA Emergency Temporary Standard (“ETS”).  One issue pertained to the merits of the appeal and whether the OSHA ETS was valid and enforceable.  The second issue confronted by the justices was the issuance of temporary stay of the OSHA ETS pending its decision.

Interestingly, during this oral argument, the U.S. Solicitor General, Elizabeth Prelogar (“Prelogar”), informed the Court that there were no significant pending compliance deadlines that would create an undue harm to employers.  Prelogar explained that Fed-OSHA has not halted or stayed the implementation of the OSHA ETS.  She stated that employers should already have drafted and implemented their COVID-19 policies and other ETS compliance documentation and procedures.  In response to a question from Justice Sotomayor, Prelogar explained that there were only two upcoming compliance deadlines facing employers.  By next Monday, January 10, 2022, Prelogar informed the Court that employees in federal OSHA jurisdictions would be required to begin enforcement of unvaccinated employees wearing masks in the workplace.  Also, by February 9, 2022, Prelogar stated that employers are required to have implemented their weekly testing procedures of the unvaccinated employees.  Prelogar did, then, also state that OSHA would not be issuing citations to employers who are making a good faith effort to comply with the testing mandates.  She represented to the Court that, according to OSHA’s inquiry, there are adequate supplies of COVID-19 test devices for employers.  The statement was met with skepticism from several of the justices.

Justice Alito questioned what potential harm could arise should the Court issue a “brief” stay.  Under continued questioning by Justice Alito, Prelogar agreed that a brief stay, depending on the definition of “brief,” would not be objectionable.

According to several justices, the critical question before the Court is what entity or entities have the authority to issue vaccination mandates in U.S. workplaces.  Many of the conservative justices seem to believe that such authority rests with Congress and/or the individual states through their police powers.  The Solicitor General and the more liberal justices argued that such authority has already been granted by Congress to OSHA and is being properly exercised by OSHA through the issuance of this ETS.

Another question raised during the oral argument was the issue of whether a grave danger was present.  Several justices also asked, if a grave danger was, in fact, present, what employees were in grave danger?  Most of the justices seemed to agree that fully vaccinated employees did not present a grave danger in the workplace.

Once a decision is rendered by the U.S. Supreme Court, either to issue a temporary stay pending its decision and/or on the viability and enforceability of the OSHA ETS, we will publish further Legal Alerts.

In the meantime, given the statements of the Solicitor General, employers within federal OSHA jurisdictions may wish to take the following OSHA ETS compliance steps:

1. Review your COVID-19 plan and, if necessary, update your vaccination, testing, and face mask provisions.

2. Determine your course of action regarding compliance with the ETS (i.e., the mandatory vaccination option or the weekly testing and mask-wearing option).

3.Agree upon, draft, and implement procedures to ensure compliance with the dictates of the OSHA ETS.

4. Update your employees as to the OSHA ETS status and notify employees of the Company’s policy pertaining to the employees’ obligations and/or costs of being unvaccinated.

5. Solidify the Company’s ability to ensure weekly testing of unvaccinated employees (i.e., how are you going to i) test; ii) order/obtain test kits; iii) arrange/contract for employee testing?).

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