The U.S. Supreme Court is scheduled to decide whether to uphold the recent Sixth Circuit ruling that overturned the previously issued stay on the federal vaccine mandate for businesses with more than 100 employees.
“If the Sixth Circuit stands the OSHA mandate will go into effect—meaning covered employers will have to begin enforcing OSHA’s emergency regulation requiring employees are either fully vaccinated or masking and undergoing weekly COVID-19 tests at the employees’ expense (unless the employer gratuitously offers to cover those testing expenses),” Luke Wake, an attorney with the Pacific Legal Foundation, said in an email response to the Northern California Record.
The Sixth Circuit’s 2-1 decision on the stay from the Fifth Circuit was issued Dec. 17.
“Importantly, the Sixth Circuit’s decision did not definitively decide the merits of whether OSHA could lawfully impose this mandate,” Wake said. “It decided only that the Government was likely to succeed on the merits, and that the other governing factors weighed in favor of lifting the stay that the Fifth Circuit had previously issued, which would have blocked enforcement of the OSHA mandate while litigation proceeded to the merits. So in its current posture the Supreme Court is not set to definitively decide this case; however, it will likely send a strong signal as to how the case will ultimately be resolved depending on whether it says the Sixth Circuit erred or not in lifting the Fifth Circuit’s stay.”
Wake noted that the three-judge Sixth Circuit panel that lifted the stay was divided, with a strong dissent from Judge Joan Larsen.
“And the Sixth Circuit divided 8-8 in denying an en banc petition—which (along with the split in authority between the Fifth and Sixth Circuits) spoke to the urgent need for the Supreme Court to review,” Wake said.
The Supreme Court’s decision is expected soon.
“The Government is supposed to file an opposition to NFIB’s emergency application on Dec. 30, and NFIB will be filing a reply by Jan. 3. The Court will hear arguments on Jan. 7,” Wake said. “Given that OSHA will otherwise begin enforcement on Jan. 10 (and will begin issuing citations before 2/9) I would expect SCOTUS to rule very quickly.”
The Fifth Circuit stay on the vaccine mandate was issued in November.
“For something as politically divisive and as sensitive as a vaccine mandate, we should expect Congress to speak in clear and unequivocal terms,” Wake said. “But here we have an agency asserting an extraordinarily expansive view of its statutory authority without a clear statement that Congress was authorizing a mandate.
“In the Government’s view, OSHA can essentially impose any regulation it deems necessary in the name of protecting employees through the pandemic, which might just as well include business occupancy restriction or industry closure orders like we’ve seen from Newsom and other governors at the state level. Simply put, this is yet another example of the Executive Branch intruding upon Congress’ exclusive prerogative to make law.”