The U.S. Supreme Court was scheduled to hear oral arguments in a case that will have significant ramifications for employers and employees: Whether to stay the Occupational Safety and Health Administration’s emergency temporary rule that employers require all employees to be vaccinated against COVID-19 or undergo weekly testing for the disease.
The Supreme Court took the exceptional step of scheduling oral arguments on the motion to stay the OSHA rules a mere three weeks after the U.S. Court of Appeals for the Sixth Circuit put the issue back into play. That speed is extraordinary in any case, but almost as rare as airborne swine for a procedural motion of whether the high court should reinstate a stay on the OSHA rules.
Here, the Supreme Court’s unusual haste is driven by several unique factors.
First, the case addresses the validity of the federal government’s most controversial effort to address the COVID-19 pandemic. When OSHA published its Emergency Temporary Standard, or ETS, in November 2021, the agency noted “COVID-19 has had a devastating impact on workers.” To date, more than 800,000 Americans have died from COVID-19 since the pandemic began in 2020, prompting OSHA to “take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger” of the coronavirus.
The ETS mandated COVID-19 vaccinations or weekly testing for most employees of employers with 100 or more workers. But when OSHA published on Nov. 5, 2021, the response was immediate — and divisive. The first legal challenge was filed within hours of OSHA’s publication of the new rule. The ETS was challenged in multiple jurisdictions, racking up nearly three-dozen lawsuits across the country. In some of those lawsuits, the parties challenging ETS asked the courts to stay enforcement by OSHA.
Second, the stay issue has generated numerous lengthy and conflicting decisions that address the merits of whether OSHA has the authority to issue the ETS. Historically, OSHA has had a hard time convincing courts that its exercise of emergency rulemaking is permissible. ETS has proven no exception. Despite the quick pace of the ETS cases, the path to the Supreme Court has been a saga.
Within days of the rule being issued, the U.S. Court of Appeals for the Fifth Circuit noted “grave statutory and constitutional issues” in deciding to pause the ETS. The Fifth Circuit panel wrote an opinion explaining why OSHA was unlikely to prevail in the case. The decision and a concurring opinion totaled 22 pages.
A few days after that, federal rules dealing with “multi-circuit litigation” required the cases be consolidated and heard by one court chosen by lottery. That turned out to be the Sixth Circuit, which represents Michigan, Ohio, Kentucky and Tennessee, which was chosen on Nov. 16 to review the cases. So, the Sixth Circuit inherited not only a truckload of cases but also the Fifth Circuit’s stay ruling.
Groups challenging the ETS apparently concluded they stood a better chance if the case was heard by the entire Sixth Circuit sitting en banc — as a court of 16 judges. Most cases are decided by three-judge panels. So, these groups petitioned the Sixth Circuit to do something very unusual: hear the case en banc before a typical three-judge panel had rendered a decision. This procedure is little used, with “little” meaning “never.” Nonetheless, eight Sixth Circuit judges wanted to take the case en banc. Alas, that was one vote short of a majority.
But the order denying en banc review was accompanied by a 27-page opinion by Chief Judge Jeffrey Sutton that was joined by seven of his colleagues. Sutton explained that OSHA was exceeding its statutory authority by, among other reasons, addressing risks outside of the occupational context. The Sixth Circuit’s opinions on denying en banc ran to 42 pages.
Just two days later, a Sixth Circuit three-judge panel issued three more opinions resulting in a 2-1 decision to dissolve the Fifth Circuit’s stay ruling and let the OSHA ETS go into effect. Judge Jane B. Stranch wrote “the ETS is an important step in curtailing the transmission of a deadly virus that has … brought our health care system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.” Another judge concurred, while Judge Joan Larson sharply dissented, re-emphasizing that OSHA was exceeding its statutory authority. The opinions landed at 57 pages.
After 121 pages of opinions on whether OSHA is likely to succeed in imposing the ETS, the U.S. Supreme Court could reasonably conclude it had heard all it needed to from the lower courts.
Third, the ETS is time sensitive. OSHA published the standard during the height of the delta variant, but omicron already is causing record numbers of infections. OSHA set Jan. 10 as the deadline for employer compliance. But with the delays caused by the litigation, OSHA is exercising enforcement discretion with respect to the ETS deadlines.
To provide employers with enough time to comply with the now-effective ETS, OSHA announced it will not issue citations for noncompliance with any ETS requirements before Jan. 10 — and will not issue citations for noncompliance with the testing requirements before Feb. 9 “so long as an employer is exercising reasonable, good faith efforts to come into compliance.” Nonetheless, the Supreme Court is hustling in part because the Jan. 10 deadline will affect a vast swathe of the American population and economy.
So, when can we expect a ruling? Given the Supreme Court’s haste and its decision to set oral argument on the motion for stay, it’s reasonable to think that the Court will issue its decision within a few weeks.
And what will the Court decide? There are some hints from the decisions in the lower courts. Every Trump-appointed judge to consider the ETS concluded OSHA had overstepped its statutory or constitutional bounds. With three exceptions, the judges who addressed the stay in the courts of appeals split along party lines with judges who were appointed by Presidents Clinton and Obama voting directly or indirectly to dissolve the stay and most judges appointed by Presidents Bush, Bush and Trump voting directly or indirectly for the stay.
The Supreme Court has three justices appointed by Democratic presidents and six by Republican presidents. Further, the jurisprudential philosophy of a majority of the justices on the court is closer to that of Chief Judge Sutton than to Judge Stranch.
Finally, there’s the fact the Supreme Court has taken the case at all. If a majority on the Court was inclined to uphold the ETS, then there was no reason to take the extreme measures of scheduling a special oral argument on a motion for stay.
Matt Nelson chairs the Appellate and Supreme Court Practice at Warner Norcross + Judd LLP and DeAndre’ Harris concentrates his practice in labor and employment law. They can be reached at email@example.com and firstname.lastname@example.org.