Employment issues will again take center stage at the U.S. Supreme Court on January 7. As we’ve reported, on that day the Court will hear appeals related to the OSHA Emergency Temporary Standard (ETS) and the Center for Medicare & Medicaid Services (CMS) healthcare worker vaccination mandate. In short, vaccine mandates will be squarely before the Court.
Since it affects any employer with more than 100 employees, the centerpiece of the argument is likely to be the OSHA ETS, which requires employees to be vaccinated or wear masks and submit to weekly testing. But, in dissolving the stay previously issued to stop the ETS from going forward, Judge Stranch of the Sixth Circuit Court of Appeals really hit home on the question that has been vexing employers since the beginning of the pandemic:
Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace.
Whether the OSHA ETS meets the goal of providing guidance to employers on how to protect employees is politically and legally debatable, but we now have OSHA clearly articulating its position to the Supreme Court.
On December 30, the U.S. Solicitor General filed an 87-page brief on behalf OSHA and responded to the various petitions challenging the ETS. We do not list below some of the legal arguments OSHA made but focus instead on the practical arguments OSHA raised in its response:
The Supreme Court has allotted one hour of oral argument to each of the cases. While Supreme Court arguments rarely make for riveting radio (no cameras are allowed), the January 7 argument is one that employers should tune into. Oral arguments can be heard at the Court’s website. The arguments will certainly highlight issues that employers have been and will continue to grapple with, and may well give a hint of how the Court will ultimately rule. In short, stay tuned!