Hannah Finnie is a writer in Washington, D.C. interested in the intersections of work and culture. She is a graduate of Harvard Law School.
The Supreme Court will hear fast-tracked oral arguments today in a consolidated set of cases challenging the Biden administration’s OSHA Emergency Temporary Standard (ETS) protecting workers against contracting COVID-19 at work and challenging a similar mandate from the Department of Health and Human Services (HHS).
The OSHA ETS requires companies with 100 or more employees to have employees either get vaccinated against COVID-19 or be subject to testing once a week and wear a mask at work. OSHA is empowered to create emergency temporary standards that can function for six months without going through the usual notice and comment rulemaking process “when it determines that a rule is ‘necessary’ to protect employees from a ‘grave danger’ from exposure to ‘physically harmful’ ‘agents’ or ‘new hazard,’” according to SCOTUSblog. Applying this standard to COVID-19, OSHA determined that COVID-19 fit the bill of being both physically harmful and a new hazard, and posed grave danger to unvaccinated workers. This rule was challenged by 27 states (led by Ohio) and the National Federation of Independent Business, which also led a challenge to the ACA in National Federation of Independent Business v. Sebelius.
The second Biden administration COVID-19 rule the Supreme Court will hear a challenge to is an HHS rule requiring health care workers at facilities participating in federal Medicare or Medicaid programs to get vaccinated, with the possibility of a medical or religious exemption.
Taken together, these two rules have the possibility of affecting the conditions of millions of workers. The OSHA ETS covers around two-thirds of the private sector and the HHS rule covers approximately 10 million workers (though some workers could be covered by both rules). The Supreme Court will be deciding whether the rules can stay in place while challenges make their way up through the courts. As a Washington Post article noted, the Supreme Court itself has stricter COVID-19 protocols than the OSHA rule requirements.
In other news, Student Workers of Columbia, a union of instructors, researchers, and teaching assistants at Columbia University, announced late last night it had reached a tentative agreement for its first contract with the school. The union and the school had been bargaining for three years, and the union went on a 10-week strike in the process of reaching this agreement.
In addition, Comic Book Workers United declared victory in its union election last night, which it says makes it the first unionized comic book publisher in the U.S.
Daily News & Commentary
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December 19
Labor law professors file an amici curiae and the NLRB regains quorum.
December 18
New Jersey adopts disparate impact rules; Teamsters oppose railroad merger; court pauses more shutdown layoffs.
December 17
The TSA suspends a labor union representing 47,000 officers for a second time; the Trump administration seeks to recruit over 1,000 artificial intelligence experts to the federal workforce; and the New York Times reports on the tumultuous changes that U.S. labor relations has seen over the past year.
December 16
Second Circuit affirms dismissal of former collegiate athletes’ antitrust suit; UPS will invest $120 million in truck-unloading robots; Sharon Block argues there are reasons for optimism about labor’s future.
December 15
Advocating a private right of action for the NLRA, 11th Circuit criticizes McDonnell Douglas, Congress considers amending WARN Act.
December 12
OH vetoes bill weakening child labor protections; UT repeals public-sector bargaining ban; SCOTUS takes up case on post-arbitration award jurisdiction