“Businesses have encouraged and incentivized their employees to get vaccines,” attorney Scott Keller told the Supreme Court Friday. “But a single federal agency tasked with occupational standards cannot commandeer businesses economy-wide into becoming de facto public health agencies. So this court should immediately stay OSHA’s unprecedented (emergency temporary standard) before Monday, when OSHA begins enforcement, which is unprecedented.”
Keller emphasized the unprecedented nature again later on in the arguments, telling Justice Breyer, “We are asking for a stay before enforcement takes effect Monday, and the reason for that is this is an unprecedented agency action.”
Breyer dismissed the claim, asking, “How can it conceivably be in the public interest with three quarters of a million people yesterday – goodness knows how many today?”
U.S. Solicitor General Elizabeth Prelogar acknowledged Keller’s claims.
“I understand the suggestion here that the standard is unprecedented, but I don’t think it would stand scrutiny,” Pelogar said. “If you look at the various claims that the applicants are making, they first object to the scope of the standard, the number of employers who are covered. But OSHA commonly issues nationwide standards that govern all employers throughout the nation.”
Justice Neil Gorsuch asked Pelogar why OSHA would exercise authority over vaccines now when, in the past, those regulations would be outside the agency’s jurisdiction.
“I think it can be explained by the fact that COVID-19 is an unprecedented pandemic that has a magnitude and proportion that OSHA has never seen before,” Pelogar said.