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:

• “OSHA found that workers are becoming seriously ill and dying because they are exposed to a virus that causes COVID-19, SARS-CoV2, on the job…”

• Employers are free to choose whether to require all employees to be vaccinated or employees who are not fully vaccinated must wear a mask and supply proof of a negative COVID-19 test at least once every seven days when working in indoor settings, with appropriate exceptions (e.g., religious accommodation) under both options.

• OSHA estimates the ETS will save over 6,500 worker lives and prevent over 250,000 hospitalizations in a six-month period.

• OSHA recognized the cost and burden for employers to carry out the ETS but grounded its authority on what it argues is the clear language of the Occupational Safety and Health Act and a 1981 Supreme Court case wherein “Congress already made the judgment that ensuring safe workplaces might require substantial regulations that apply nationwide and carry significant compliance costs.”

• OSHA contends that the ETS will only cause “modest costs and worker attrition.”

• OSHA implemented the ETS because “non-regulatory options have proven to be vastly inadequate” to protect against the workplace threat posed by COVID-19.

• OSHA tailored the ETS to address a particular class of workers, specifically unvaccinated employees. According to OSHA, the ETS is needed because unvaccinated workers face a grave danger from exposure and are more likely to contract COVID than vaccinated workers. “It is the lack of vaccination that results in grave danger,” a finding necessary to implement the ETS. Where a grave danger exists from exposure to substances or agents determined to be toxic or physically harmful, “Congress has directed that OSHA ‘shall’ issue an emergency temporary standard to take effect.” OSHA argues that the ETS “falls squarely within that grant of authority.”

• OSHA chose the 100-employee threshold because it “is confident [the companies] will have sufficient administrative systems in place to comply quickly.”

• The ETS is “not a ‘vaccine mandate,’” as employers may choose whether to require employees to be vaccinated or to require unvaccinated employees to mask and test. Employers may also seek variances if they can demonstrate other methods that provide the same level of protection as complying with the ETS. Because the ETS is not a vaccine mandate, OSHA is within its right to issue an ETS that encourages vaccines.

• OSHA rejected the contention that the ETS was unnecessary due to differences among employees, employer types, and worksite conditions, and instead argued that only a national ETS sufficiently met the goal of protecting against the grave danger it contends exists.

• OSHA was required to issue the ETS even though employees may contract COVID-9 outside of the workplace.

• Vaccination is not “materially different from other types of mitigation measures OSHA can employ to address workplace hazards.” “OSHA standards routinely require the use of protective controls even if employees would prefer not to be subject to particular health or safety measures.”

• Even if the Court were to stay or enjoin the vaccination requirement, the requirement that requires unvaccinated employees to mask and test should be left in place.

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.