U.S. Supreme Court Hears Oral Arguments in OSHA ETS Case


The United States Supreme Court heard oral argument today in the OSHA ETS case. Of course, you never know how the Court will rule, but if the judges’ questions are any indication, there could be a 6-3 split in favor of a stay, with Chief Justice Roberts, Justice Thomas, Judge Alito, Judge Gorsuch, Judge Kavanaugh and Judge Barrett voting for and Judge Breyer, Judge Kagan and Judge Sotomayor being dissenting.

All parties made very brief opening remarks and then invited the judges to ask questions. The common theme that Justice after Justice questioned the parties about was not whether vaccinations are helpful in the fight against COVID-19 or whether warrants are legal in general, but who decides these public health matters? Much of the questioning and argument has focused on the main issue doctrine, the factors that determine when to invoke that doctrine, and whether Congress has specifically delegated authority to OSHA to legislate on the ETS at issue. As the petitioners challenging the ETS have argued, OSHA ETS is a general workplace rule, unsuitable for a particular industry, and published without considering specific levels of risk in different work environments. They argued that the extraordinary power of an emergency rule requires that the rule be more precise, based on an industry-by-industry analysis. The Solicitor General argued that Congress legally delegated the authority to issue the ETS to OSHA when it enacted the Occupational Safety and Health Act 1970 (the “OSH Act”) . 19, and given the ongoing pandemic, OSHA has considered and properly balanced the various competing interests. The current increase in COVID-19 cases has created a context in which the Solicitor General and several of the judges have expressed concern over the issuance of a stay.

During arguments, Chief Justice Roberts asked the Solicitor General if the government is “working on the waterfront” with several federal agencies and executive actions to legislate on workplace rules # covid19, noting the Center of Medicare and Medicaid Services (CMS) and the federal government. The contractors order the vaccination warrants – without giving Congress a say or recognizing the police powers of the states. He also expressed doubts that Congress considered OSHA to have this much power or anticipated a COVID-19 pandemic by granting OSHA authority under OSH law there. is over 50 years old.

Justice Alito suggested that with ETS, the government was trying to “get an elephant through a mouse hole,” asked the solicitor general about people’s personal medical decisions regarding vaccination and asked if the tests Regular COVID-19 were even a viable option at this point.

Judge Breyer expressed concern about the growing number of daily cases, noting that yesterday the country had around 750,000 new cases. The petitioners argued, however, citing Alabama Assoc. real estate agents, et al. v. HHS, 594 United States _____ (2021) (moratorium on CDC deportations decided by the High Court on August 26, 2021), that while tackling the spread of COVID-19 is a noble goal, no matter how well-intentioned, the end cannot justify the means when these means are illegal.

Whatever the outcome, it needs to happen quickly because employers need clarity.

Jackson Lewis PC © 2022National Law Review, Volume XII, Number 7

About Marco C. Nichols

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