It’s possible that a decision may come as early as Monday when the Emergency Temporary Standard is set to go into effect.
BY SUZANNE LUCAS, FREELANCE WRITER@REALEVILHRLADY
Business owners and HR managers who have 100 or more employees got a little closer to a resolution over the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard when both sides argued before the U.S. Supreme Court today.
The standard requires employers with 100 or more employees to either mandate vaccinations for all or to require your unvaccinated employees to take weekly Covid tests and wear a mask unless they work alone or 100 percent outside, among other things. But the objections center around these two principles.
The Sixth Circuit Court lifted the stay on the standard on December 17, and if the court doesn’t reenact the stay by Monday, it will go into effect on Monday. They may give a quick response, but not entirely necessary from an employer’s point of view. OSHA said that as long as companies are operating in “good faith,” it will not begin enforcement until February 9, giving the court a bit more time to decide.
While the briefs tend to be a more substantial influence on the justices than the oral arguments, you can get some idea of what to expect from them. Here’s what you need to know:
The Possible Outcomes
OSHA attorney Phillip Russell, an equity shareholder at the employment law firm Ogletree Deacon, gave four possible outcomes, each with its own set of issues for business owners.
- SCOTUS enters an indefinite stay pending further action by either SCOTUS or the 6th Circuit;
- SCOTUS enters a brief stay for the Court to further consider the briefing and oral arguments before addressing an indefinite stay;
- SCOTUS denies the applications and allows enforcement to begin as OSHA wants on Monday, January 10; or
- SCOTUS denies the applications and allows enforcement to begin, but enters a brief stay giving employers time to comply
In other words, a quick decision may not be a final decision. There may be a lot more before a final decision happens.
Opinions Seemed to Form Along Ideological Lines
Covid has been political for a long time, and those political lines seemed evident in the hearings. As an employment attorney and partner Jon Hyman at Herzer Wickers Panza says:
Based on the tone and tenor of the questions, there exists a clear, and not unsurprising, left/right divide on the court, which does not bode well for the ETS going into effect. I don’t see 5 votes against reinstating the stay.
For example, Justice John G. Roberts Jr. (appointed by George W. Bush) and Justice Neil M. Gorsuch (appointed by Donald Trump) both indicated that federal agencies were not the right place to solve the pandemic, while Justice Elena Kagen (appointed by Barack Obama) and Justice Stephen G. Breyer (appointed by Bill Clinton) indicated that the employees of the U.S. needed this mandate.