Supreme Court to Hear NFIB Lawsuit on OSHA’s Vaccine Mandate for Businesses with 100+ Employees

Date: January 05, 2022

The U.S. Supreme Court will hear oral arguments to place a stay on the vaccine mandate

On Friday, January 7, the U.S. Supreme Court will hear oral arguments from NFIB asking the Court to place a stay on OSHA’s Emergency Temporary Standard (ETS) vaccine mandate, which mandates businesses with 100 or more employees require workers either receive the COVID-19 vaccine or undergo weekly testing and wear masks while at work. 

In November, the NFIB Small Business Legal Center filed a legal challenge against the ETS with the U.S. Court of Appeals for the Fifth Circuit. The court placed a stay on the ETS until the legal challenge could be resolved. However, in December, the Sixth Circuit Court of Appeals overturned the Fifth Circuit’s decision and reinstated the ETS. NFIB responded by petitioning the U.S. Supreme Court to issue a new stay of the ETS, alongside 25 other business associations. 

“The Sixth Circuit’s decision is a gut punch to America’s small businesses who are struggling to stay in business as they come out of the pandemic,” said Legal Center Executive Director Karen Harned after the Sixth Circuit Court overturned the stay. “Small businesses are managing several challenges and this impending vaccine mandate only exacerbates those challenges. OSHA simply does not have the emergency authority to regulate American workers under such a mandate. NFIB will continue to fight against this illegal and unconstitutional mandate all the way up to the U.S. Supreme Court.” 

Meanwhile, OSHA announcedit will push back enforcement of the vaccine mandate to Jan. 10 and will not issue citations for noncompliance with its testing requirements before Feb. 9. 

The Small Business Legal Center’s legal challenge argues that OSHA does not have the authority to issue the mandate for several reasons. First, OSHA did not use their typical notice-and-comment procedure to gather public input before imposing a mandate. NFIB also argues that a nationwide COVID-19 vaccine and testing mandate is a decision for Congress and is outside the scope of a federal agency. Lastly, the lawsuit argues the mandate will severely injure small businesses by creating unrecoverable compliance costs, lost profits, and lost sales, while further exacerbating the labor shortage for small businesses. 

On December 30, a group of U.S. Senators and Representatives filed an amicus brief supporting NFIB’s petition for the Supreme Court to block the mandate. If you’re concerned about the ETS as well, you can urge your members of Congress to fight the ETS by sending them a message explaining how the ETS would impact your business. 

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