On January 7, the U.S. Supreme Court heard oral arguments on whether the Court should reissue the stay preventing the Occupational Safety and Health Administration (“OSHA”) from enforcing their November 4, 2021 Emergency Temporary Standard (“ETS”). OSHA’s ETS sets forth, among other requirements, that employers must ensure their employees are vaccinated or, if unvaccinated, that they wear protective face coverings and take weekly COVID-19 tests. The ETS applies to all employers with 100 or more employees. OSHA has stated its intention to begin enforcing some of the provisions in the ETS, including the requirement that unvaccinated employees wear masks at the workplace, on Monday, January 10. This legal advisory is a follow-up to our December legal advisory “Sixth Circuit Court of Appeals Dissolves the Stay of OSHA’s COVID-19 Emergency Temporary Standard.”

Oral Argument

During the oral argument, some justices were skeptical of whether OSHA, rather than elected representatives in Congress and the states, has the regulatory authority to make such “sweeping” rules with respect to COVID-19 protocols. Other justices expressed “disbelief” that a stay of the ETS would be granted given the current surge in the pandemic and the “public interest” factor in any stay consideration. The questions asked at oral argument might suggest that a majority of the Court may agree with the arguments posited by the business organizations and states that are challenging OSHA’s ETS.

Regardless, until the Supreme Court acts, employers are expected to comply with much of the ETS by January 10. It is for this reason that, during oral argument, Justice Alito suggested an administrative stay that would prevent the enforcement of the ETS for a brief period and allow the Supreme Court adequate time to consider the merits of the case before it and the request for a more lasting stay of the ETS.

What’s Next?

Until the Supreme Court issues a stay, whether administrative or based on the merits, employers should be aware that OSHA’s present position is that it will begin enforcing the ETS on January 10, 2022. This means that employers with 100 or more employees should be prepared to have COVID-19 policies in place and require unvaccinated employees to wear masks. Meanwhile, the testing requirements for any unvaccinated employees will not be enforced until at least February.

For now, we must wait for the Supreme Court’s decision, which could come any day. We will provide additional updates as this develops as well as another legal advisory that further addresses the merits of this case.