Is the Supreme Court Inclined to Grant a Stay on the OSHA Vaccine Mandate?

The U.S. Supreme Court recently heard arguments about whether the federal government can force businesses with at least 100 employees to require these employees to submit to a COVID-19 vaccine or weekly testing, or face termination. According to the SCOTUS blog, the signs point to granting the stay for private businesses but upholding enforcement for health care workers.

The SCOTUS blog said the justices “were skeptical of the administration’s attempt to impose a vaccine-or-test mandate for workers at large employers” during arguments. In the health care worker argument, the justices “were more receptive to the administration’s efforts to impose a vaccine mandate for health care workers at facilities that receive federal funding.”

The liberal justices likely will vote to allow the federal government to force a vaccine mandate. Chief Justice John Roberts, who often votes with the liberal justices, and the other justices expressed skepticism about OSHA’s authority to issue vaccine mandates.

“It seems to me that it’s that the government is trying to work across the waterfront and it’s just going agency by agency,” Chief Justice Roberts said (PDF – transcript). “I mean, this has been referred to, the approach, as a work-around, and I’m wondering what it is you’re trying to work around.” He added that the mandate “sounds like the sort of thing that states will be responding to or should be or — and that Congress should be responding to or should be rather than agency by agency, the federal government, the executive branch, acting alone, is responding to it.”

Justice Neil Gorsuch echoed the chief justice’s sentiments: that the mandate is a workaround, and the federal statute OSHA relies on doesn’t address the question of enforcing vaccine mandates, which states traditionally oversee.

The National Federation of Businesses allege that OSHA doesn’t have the authority to issue vaccine mandates or force businesses to enforce the regulation.

“Our nation’s businesses have distributed and administered hundreds of millions of COVID vaccines to Americans,” attorney Scott A. Keller said. “Businesses have encouraged and incentivized their employees to get vaccines. But a single federal agency tasked with occupational standards cannot commandeer businesses economy-wide into becoming de facto public health agencies.”

Harmeet K. Dhillon, who represents a client fighting the vaccine mandate, appeared on Fox News. She believes the court will issue a split ruling: granting the stay for private business and denying the stay for health care workers.

Millions await the Supreme Court’s decision. Dhillon said the fact that the high court “is still sitting on this and hasn’t ruled yet produces tremendous expense, uncertainty, stress, and disruption to the American economy. So I really hope, for the sake of all those employees and employers, that the court rules quickly so that we can move on and arrange our affairs accordingly.”

If the court grants the stay, we’re not out of the woods yet, Dhillon said. Watch the brief clip to find out why.

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