Vaccine mandate: Neither business nor labor offers united front as SCOTUS hears case
Justices will see disagreement within the business community and within labor unions on potential effects of the employer vaccinate-or-test rule.
As the U.S. Supreme Court prepares to hear arguments over the Biden administration’s vaccine mandates, there is not just a familiar division between business and workers in the amici briefs, but division within their own ranks as well, over the legal and social policy issues.
The justices on Friday will hear expedited arguments in challenges to the administration’s vaccine requirement for health care workers at federally-funded Medicaid and Medicare facilities, and its vaccinate-or-test rule for employers with 100 or more employees.
The employer vaccinate-or-test rule has been particularly contentious and so it is probably not surprising that business and labor struggle to project united fronts before the justices.
On the morning of Jan. 7, the justices are set to hear arguments first in two employer mandate cases in which the National Federation of Independent Business and its business allies and Ohio, along with 26 Republican-led states and varied employers, ask the high court to block the employer rule while their appeals proceed in the U.S. Court of Appeals for the Sixth Circuit. The appellate court refused to impose an injunction halting the mandate.
The National Federation of Independent Business has been a party in many Supreme Court cases, perhaps most famously, NFIB v. Sebelius, its unsuccessful challenge to the Affordable Care Act in 2012. Along with a number of national and regional business associations, its counsel, Steve Lehotsky and Scott Keller of Lehotsky Keller, argue the employer rule exceeds the authority of the Occupational Safety and Health Administration.
But the division within the business community is particularly pronounced in their views of whether the mandate causes harm. The potential for irreparable harm is one of the key factors in weighing the request for a stay.
The employer rule “will inflict irreparable harm upon hundreds of thousands of businesses across the retail, wholesale, warehousing, transportation, travel, logistics, and commercial industries that collectively employ millions of Americans,” Lehotsky contends. “It will impose substantial, nonrecoverable compliance costs on those businesses.”
Supporting the NFIB, John Masslon II, counsel to the pro-business Washington Legal Foundation, argues that vaccine mandates are causing supply-chain issues and raising prices. “When governments or companies require employees to get vaccinated, many employees quit or are fired,” he wrote. “Those positions often remain unfilled because many job seekers either refuse to join companies that require vaccines or move to jurisdictions without vaccine mandates.”
A national employer mandate will exacerbate those problems, he wrote.
But the Small Business Majority and the American Independent Business Alliance, which, they say, represent “tens of thousands of small businesses,” and their small business allies, support the employer mandate in their amicus brief by counsel, Richard Koffman of Cohen Milstein Sellers & Toll.
“Amici are concerned that a stay would endanger small and independent businesses in three ways,” Koffman wrote. “First, those businesses which have at least 100 employees lose the direct protection of the ETS (Emergency Temporary Standard). Second, businesses that have fewer than 100 employees lose the indirect protection of having larger businesses abide by the ETS. Third, states would remain free to prevent employers from voluntarily implementing vaccination and/or testing requirements to protect their employees and customers.”
Koffman contends that businesses and business organizations opposing the employer mandate “do not represent the views of most American businesses.”
A similar divide over harm and the balance of equities is evident in the union briefs.
The AFL-CIO, represented by Randy Rabinowitz of the OSH Law Project, argues the unions support the mandate because it is “necessary to protect the workers they represent, and millions of others, from the grave danger COVID-19 currently poses in their workplaces. In addition, accepting the arguments the Petitioners advance would undermine OSHA’s ability to fulfill its statutory duty ‘to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.’”
But taking a different stance are Local Union 1249 of the International Brotherhood of Electrical Workers and Local Union 97 of the International Brotherhood of Electrical Workers which, they say, collectively represent over 7,000 electricians and other utility workers throughout the state of New York and beyond.
Their counsel, Brian LaClair of Blitman & King in Syracuse, New York, wrote that his clients are “fully aligned” with their fellow unions in seeking to promote a safe and healthy work environment. “However, amici are concerned that unvaccinated members will have to choose between receiving a COVID-19 vaccine and no longer being able to provide for themselves and their families.”
The employer rule, he added, “unlike any existing workplace regulation, improperly seeks to regulate off-duty conduct in response to largely non-occupational hazards, shift the associated costs to employees, and compel them to choose between losing their jobs and receiving a vaccination they do not desire to receive.”
In some respects, LaClair wrote, the mandate “usurps the role of collective bargaining representatives like amici, who are well equipped to negotiate workplace policies to combat the spread of COVID-19. Finally, the ever-changing nature of the virus and the conventional wisdom on how best to combat it militates in favor of a stay.”