The Supreme Court wrestled with the question Friday of whether the Occupational Safety and Health Administration can require employees at businesses with 100 or more employees to be vaccinated against COVID-19 or wear masks and get weekly tests.

In oral arguments, lawyers for the National Federation of Independent Business, representing business interests, and the state of Ohio, representing 27 states, told the court it should stay a ruling from the Sixth U.S. Circuit Court of Appeals that allowed the workplace regulations to go into effect. Without a stay, the vaccine/testing requirement goes into effect Monday.

The agency said it won’t issue citations for noncompliance with the standard’s testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good-faith efforts to come into compliance with the standard.”

Solicitor General Elizabeth Prelogar told the court the Occupational Safety and Health (OSH) Act of 1970 provides ample authority for OSHA to issue an Emergency Temporary Standard like the one it adopted for businesses to address the “grave danger” caused by the novel coronavirus.

Scott Keller, representing NFIB, said the OSHA rule was an “economy-wide, one-size-fits-all” mandate that would cause millions to leave their jobs and disrupt an economy already reeling from a supply chain crisis. Ohio Solicitor General Benjamin Michael Flowers called it a “blunderbuss” approach.

“What we dispute is the idea that a risk that is ever-present in all places, can be regulated simply because it's also in the workplace,” Flowers said. States and businesses are best equipped to address the risks faced by COVID in the workplace, he said.

“OSHA could regulate COVID-19 in the workplace when the employer does something like packing individuals very closely together in a poorly ventilated area,” he said.

Prelogar, however, said COVID-19 “is the deadliest pandemic in American history, and it poses a particularly acute workplace danger. Workers are getting sick and dying every day because of their exposure to the virus at work.”

Some justices agreed that the pandemic constitutes enough of a public health emergency to justify OSHA’s action.

“Why isn't this necessary to abate the grave risk?” Justice Elena Kagan asked Keller. “This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century.” Justice Stephen Breyer noted that the daily cases are approaching 750,000.

“Whatever ‘necessary’ means, whatever ‘grave’ means, why isn't this necessary and grave?” Kagan asked.

The Occupational Safety and Health Act of 1970 gives the Secretary of Labor, who oversees OSHA, authority to issue an emergency temporary standard if he or she finds it “necessary” to protect employees who “are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”

Kagan and Justices Sonia Sotomayor and Breyer seemed inclined to support OSHA and its ETS, while Justice Samuel Alito and Chief Justice John Roberts appeared to agree more with the arguments of the business community and the states challenging the ETS. At one point, Alito pressed Prelogar to concede that getting a COVID vaccine carries some risk to individuals, to which she responded that the risk to workers of not getting vaccinated is “orders of magnitude” higher.

Roberts pointed out that Congress passed the OSH Act in 1970. “That was 50 years ago. I don’t think it had COVID in mind,” he said. “I think it's certainly hard to argue … that that gives free rein to the agencies … to enact such broad regulation.”

Prelogar said, “I think that Congress did specifically contemplate that there would be emergency situations that pose grave dangers to workers throughout America, and it specifically empowered OSHA to take action in response to that.”

FMI-the Food Industry Association, the International Food Service Distributors Association, American Bakers Association and National Association of Convenience Stores, as well as grocers in Ohio and Tennessee joined in the NFIB brief seeking a stay. Unions led by the AFL-CIO and including the United Food and Commercial Workers International Union called for keeping it in place.

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