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Covid Shot-or-Test Rule Opponents Press Supreme Court for Stay

Jan. 3, 2022, 6:11 PM

Covid-19 is a societal health problem and not a workplace hazard that the Occupational Safety and Health Administration can regulate with its vaccinate-or-test rule for large employers, a coalition of states and an alliance of business groups told the U.S. Supreme Court.

The Republican-led states and industry organizations filed their final briefs Monday in advance of Jan. 7 oral arguments at the high court. The justices will consider the states’ and business groups’ bid for an order blocking OSHA’s emergency rule, a key part of the Biden administration’s efforts to vaccinate the country out of the nearly two-year-long coronavirus pandemic.

The Supreme Court also will hear oral argument on the same day in a challenge to the administration’s vaccine mandate for health-care workers.

The practical impact of the shot-or-test rule may depend on the Supreme Court’s view of the stay requests. If the justices freeze the measure while litigation over its merits continues, it may not be in effect for long even if it survives judicial review at the circuit court level. The regulation is set to expire in May.

OSHA’s emergency standard requires employers with at least 100 workers to mandate vaccination or regularly test their employees. The measure also calls on companies to develop a vaccine policy, determine employee vaccination status, and provide leave for worker vaccination or recovery.

The agency published its shot-or-test rule Nov. 5, only to see the U.S. Court of Appeals for the Fifth Circuit halt it a day later. The Sixth Circuit, which took control of the consolidated case challenging the rule after winning a multi-circuit lottery, lifted that stay Dec. 17.

OSHA gave employers until Jan. 10 to comply with most of the rule. The agency said it wouldn’t begin issuing citations for violating its testing requirement until Feb. 9.

But a slew of challengers asked the Supreme Court to block the emergency standard. The justices agreed to hear arguments from a group of 27 states with Republican attorneys general and a coalition of 26 business organizations.

The ‘H’ in OSHA

The Biden administration told the court last week that OSHA properly determined that the coronavirus is a new health hazard, exposure to it presents a grave danger to unvaccinated workers, and an emergency regulation was necessary to protect them from getting infected on the job.

The industry groups, led by the National Federation of Independent Business, said in their brief Monday that the government’s “position that OSHA can regulate any health problem threatening an employee’s health would remove any remaining limit on OSHA’s authority.” That could lead to other OSHA rules, such as one for workplace cafeterias to prevent obesity and other health problems, the groups said.

The Ohio-led union of states argued in its brief that OSHA can only regulate hazards if they arise “directly out of the workplace,” quoting from a recent dissenting opinion from Jeffrey Sutton, the Sixth Circuit’s influential chief judge.

“That generally excludes risks that arise out of routine human interaction as opposed to work or the workplace risks like COVID-19 and violent crime,” the GOP states said. “And it generally excludes other risks that we face by virtue of living on Earth in the present day—risks like exposure to community-wide air pollution.”

The case is NFIB v. DOL, U.S., No. 21A244, Reply briefs filed 1/3/22.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com