On Friday, the Supreme Court will hear oral arguments for two of Biden vaccine mandate cases. Procedurally, the cases are in a relatively unique position. The Court will hear arguments about whether to stay or grant injunctions of the emergency rules, while the lower courts consider the merits of the cases. So, while the cases have reached the Supreme Court, technically, this is not the final say on the outcome. The Court’s decision, however, will have a huge impact on where these cases are going.

What does it mean: 

The Biden Administration’s Emergency Temporary Standard (ETS) mandating that large employers (over 100 employees) require employees to get vaccinated or, if unvaccinated, wear a mask and get tested weekly, has faced multiple court challenges. The cases have been consolidated and the 6th Circuit Court lifted an injunction imposed by the Fifth Circuit. OSHA has indicated

“OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

The decision of the Supreme Court on the injunction will provide a strong indication of what employers will or will not need to do to come into compliance with the ETS.

The Biden Administration submitted its brief last week in the OSHA employer “vaccinate or mask and test” mandate on large employers. The Administration argues this is a straightforward, common-sense policy. 800,000 Americans have died, and the administration is taking reasonable steps, authorized by the OSHA statute, to address a “grave danger” from a “physically harmful” or “new agent” – the standards under the statute for OSHA to issue emergency regulations.

“Confronted with the deadliest pandemic in the Nation’s history, which has infected more than 50 million and killed more than 800,000 people in the United States alone, OSHA found that workers are becoming seriously ill and dying because they are exposed to the virus that causes COVID-19, SARS-CoV-2, on the job -- including in widespread and well-documented workplace clusters and outbreaks … The Occupational Safety and Health Act of 1970 provides that OSHA “shall” issue an emergency temporary standard (ETS) when the agency “determines” that an ETS is “necessary” to protect employees from a “grave danger” resulting from, among other things, exposure to “physically harmful” “agents” or “new hazards.” OSHA properly determined that SARS-CoV-2 is both a physically harmful agent and a new hazard; that exposure to that potentially deadly virus in the workplace presents a grave danger to unvaccinated employees who are at greatest risk of contracting and spreading the virus at work and suffering serious health consequences as a result; and that the Standard is necessary to protect those employees from the danger of contracting COVID-19 at work. Applicants’ contrary arguments rely on strained readings of the statutory text – for example, that the serious risk of infection, hospitalization, and death faced by unvaccinated workers does not qualify as a “grave danger”;

The “applicants” for the injunction, or plaintiffs, and their allies also view this as a straightforward, common-sense case – of executive branch overreach. The OSHA statute has existed since 1970 and has never been used to require vaccinations. If Congress had intended to include viruses in the definition of “harmful agent,” it would have done so explicitly. Afterall, deadly viruses that could spread in the workplace existed before COVID19. The fact that Congress has passed numerous bills related to the pandemic, totaling over $5 trillion, demonstrates there is no barrier to Congress legislating COVID policies. Moreover, it chose not to explicitly authorize mandatory vaccination. Congress paid for the development and distribution of the vaccines and made them free – but stayed silent on requiring them in the workplace.

“While there has not been a pandemic on the scale of COVID-19 in more than a century, every single year there are flu outbreaks that cause tens of thousands of American deaths—and make tens of millions more Americans sick (and miss work). There is also a well-established pattern over decades of the emergence of novel strains of flu, such as H1N1 in 2009, that are even more deadly and severe than the regular flu. Perhaps the agency responsible, as Respondents assert, for the workplace health of “every” American worker, has been perennially abdicating its responsibility for its entire existence. But far more likely is that no one ever thought, in 1970 or up until now, that society-wide illnesses such as influenza, pneumonia, and even coronaviruses, presented an occupational health emergency within the scope of OSHA’s limited regulatory authority.”

As the case has progressed through the appellate process, The Administration has refined and narrowed its legal argument after losing in two appellant courts:

“exposure to that potentially deadly virus in the workplace presents a grave danger to unvaccinated employees [emphasis added] who are at greatest risk of contracting and spreading the virus at work [emphasis added] and suffering serious health consequences as a result; and that the Standard is necessary to protect those employees from the danger of contracting COVID-19 at work.”

This is a subtle but important refinement of the Administration’s original rationale for the mandate:

“The President’s plan will reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements.”

The Administration has shifted its public messaging about the vaccine mandate’s purpose from increasing vaccination rates overall to specifically protecting unvaccinated workers from catching COVID in the workplace. The Administration is facing a 6-3 conservative majority and are going to make what they believe is the best case for the Court – but this shift is significant and likely to come up in oral arguments.

One potentially significant weakness in the Administration’s brief is that it does not mention the Omicron variant. The brief discusses the dangers of the Delta variant but ignores the Omicron entirely. The Amicus brief from Republican Members of Congress takes on this omission directly:

Moreover, mandatory vaccinations do not stop individuals from contracting and transmitting COVID-19. Vaccinated workers can still contract and transmit COVID19, including the new Omicron variant. Given that fact, imposing masking and testing restrictions only on unvaccinated workers makes no sense because all workers regardless of vaccination status remain potential carriers and transmitters of the virus. If the Rule does not cure the supposed grave danger in the workplace, it cannot be necessary under the statute. Thus, the ETS Mandate cannot rise to the level of “necessary” required by the text of the OSH Act.

The plaintiff’s brief adds:

Despite Respondents’ attempts (Resp. 47) to establish that there is something “unique” about workplaces and COVID-19, there simply is not. People get COVID-19 by being around other people with COVID-19—at home, at restaurants, everywhere. They get it at work, too. But people get COVID-19 by social interactions that occur anywhere, and everywhere, all of the time…

Meanwhile, those federal agencies that do have expertise over communicable diseases have issued guidance that conflicts with the ETS’s foundational assumptions. The CDC, for instance, has advised that employees who test positive for COVID-19 may return to work after five days even without testing before their return if their “symptoms are resolving.” The ETS, by contrast, would force unvaccinated workers to test every seven days regardless of COVID-19 exposure or symptoms. The CDC also recommends that individuals who test positive for COVID19 use a mask only for five days if they are asymptomatic. Likewise, the CDC expects that “anyone with [the] Omicron [variant] can spread the virus to others, even if they are vaccinated or don’t have symptoms.”

Why it matters:

This is a significant, complicated case. The outcome will determine the fate of the Administration’s vaccine or mask and test mandate. But more broadly, it will also establish how the Court, with a new 6-3 conservative majority, will interpret separation of powers and statutory interpretation in cases more broadly.