Update on Filing with the U.S. Supreme Court to Reinstate the Stay on OSHA’s 100+ Employee Vaccine Mandate

Fully briefed by Jan 3, 2022, oral argument Jan 7, 2022, and a decision will hopefully follow shortly thereafter…

Earlier this week, my firm submitted an emergency application for a stay to the Supreme Court of the United States seeking to reinstate the stay on OSHA’s COVID-19 vaccine mandate on employers with 100 or more employees. 

Here is a bit of background.  At the direction of President Biden, on November 5, 2021, OSHA issued its Emergency Technical Standard (ETS) which calls for those employers to mandate vaccination or testing and masking for its employees.  On November 12, 2021, the Fifth Circuit stayed the ETS, concluding that COVID-19 is not the sort of “substance” or “agent” that poses such a “grave danger” as to allow OSHA to take emergency action.  The Court further criticized the scope of the ETS, characterizing it as a “one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility” to the virus.  The Fifth Circuit therefore concluded that the ETS’s challengers are likely to succeed on the merits and issued a stay requiring OSHA to suspend activities related to the implementation and enforcement of the ETS pending subsequent developments in the litigation.

The case was then moved to the Sixth Circuit, where OSHA filed an emergency motion seeking to dissolve the Fifth Circuit’s stay and to allow OSHA to enforce the ETS while the Sixth Circuit made decisions on the merits.  On December 17, 2021, after many petitioners including the petitioner my firm represents, opposed OSHA’s motion, the Sixth Circuit granted OSHA’s motion allowing OSHA to proceed with enforcement of the ETS while the various challenges still are pending.

This week’s filing asked the Supreme Court to correct the Sixth Circuit and re-issue the stay.  Justice Kavanaugh has ordered OSHA to respond by December 30, 2021 and our petitioner to reply by January 3, 2022.

The following is an introduction to the emergency motion my firm filed and a link to the full brief is below:

The Government envisions an America unrecognizable by the Framers of our Constitution in issuing the COVID-19 Vaccination and Testing; Emergency Temporary Standard ... It sees an America where a non-elected federal agency can use the commerce clause to usurp quintessential state police powers, like the authority to regulate health and safety, simply because the President disagrees with how the states are using that authority.  James Madison explained that the Commerce Clause was “an addition which few oppose and from which no apprehensions are entertained.”  While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, courts have “always recognized that the power to regulate commerce, though broad indeed, has limits.” Maryland v. Wirtz, 392 U.S. 183, 196 (1968). Otherwise, the nation must ask itself, “[t]o what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).

As of now, according to OSHA, employers have until January 10 to comply with weekly testing requirements for those employees who are not fully vaccinated.  The hope is that the Supreme Court rules in advance of that date. 

Full Brief