When A Free AND Ordered Space Is Protected by Ping-Pong Balls

Part 6 of the series

By John Ptacin, Member, Sedor, Wendlandt, Evans & Filippi, LLC

Commissioner Michael Johnson described a Free and Ordered Space as the tension needed to operate as a society, a school board, or a school. That same tension is at play in our Nation. We are historically unique in that we have a federal system (with checks and balances) overlaid on 50 states – each with its own sets of checks and balances. The checks and balances in the Federal System include, of course, US agencies (under the President) and the courts. We have 12 Circuit Courts each with jurisdictional limitations and each subject to US Supreme Court appeal. A news-worthy example of the tension at play in our free and ordered space recently unfolded following President Biden’s declaration of the vaccine-or-test rule. 

On November 5, 2021, following the policy directive of the President, the Federal Occupational Safety and Health Administration (OSHA) issued an emergency “vaccine-or-test” rule, requiring all employers with 100 or more employees to follow certain COVID-19 mitigation rules (including school districts). The rule mandated that employees either needed to be fully vaccinated against COVID-19 or get tested weekly. The rule would have applied to approximately 80 million employees. OSHA’s emergency rule was originally set to take effect on December 6, 2021, but the effective date came and went. Officials in 27 states, employers, employee groups, unions, and business organizations filed challenges to OSHA’s emergency rule in essentially every Federal courthouse they could find. On January 14, 2022, the United States Supreme Court put OSHA’s vaccine-or-test mandate for large employers on hold while litigation over its legality continued. So how did the highest court in the land hear this case so quickly? Why did the Court put OSHA’s emergency vaccine or test mandate on ice? And what might happen next? SPOILER ALERT, the answer to some of these questions involves ping pong balls.

First, if you’ve ever fought a speeding ticket, you know getting your day in court takes considerable time and effort. Yet when OSHA issued an emergency order on November 5, 2021, the issue reached the High Court in a little over two months—why this case? The answer stems from the breadth of OSHA’s emergency rule. It would have required all employers with 100 employees or more (like a majority of school districts) to create systems to verify the vaccine status of employees and set up testing regimes for the employees that elected not to be vaccinated. The emergency rule gave employers roughly a month to comply. Given the rapid timing, groups asked the Courts to suspend application of the rule pending a determination whether OSHA had the authority to enforce such a rule. The economic impact of the OSHA emergency rule combined with the number of cases filed required the Federal Courts to act quickly.  

This is where the ping pong balls come into play. The Federal Courts have adopted efficiency measures when a single question inundates the dockets of its Courts. To avoid litigating the legality of OSHA’s vaccine or test mandate in multiple jurisdictions, a Federal Panel held a selection process, and – yes – it actually used a wooden raffle drum and a collection of 12 ping-pong balls, one each for the First through Eleventh Circuits, and one additional for the D.C. Circuit. On November 16, 2021, the ping-pong ball marked for the Sixth Circuit Court of Appeals was the “lucky winner,” and all the cases were consolidated and transferred to that Circuit.

The Sixth Circuit did not waste much time. A month later, on December 17, 2021, a three-judge panel ruled that OSHA could enforce the emergency vaccine or test mandate on an interim basis while the Court sorted out all the legal challenges. OSHA—the Sixth Circuit ruled—had demonstrated the pervasive danger that COVID-19 poses to workers in their workplaces. The Sixth Circuit judges felt this sufficiently justified the emergency rule, at least until the legal challenges were resolved.

Three days later, several interested parties appealed the Sixth Circuit’s temporary decision to the United States Supreme Court. The rest is history—The United States Supreme Court disagreed with the Sixth Circuit. OSHA had not established its emergency rule was supportable on an interim basis, at least as applied to all employers with 100 or more employees. 

So why did the United States Supreme Court put OSHA’s emergency vaccine or test rule on hold? Its important to note the Court’s ruling did not resolve whether OSHA’s rules would or would not mitigate the spread of COVID 19. Instead, the case revealed an ongoing tension at the Supreme Court concerning the extent to which administrative agencies can regulate everyday life without a specific request or action by Congress. During oral arguments, OSHA argued its authority stems from its statutory authority to protect employees from “grave danger.” The majority held that while Congress may have given OSHA the power to regulate workplace dangers, it had not given that agency the power to broadly regulate public health. Per the Court, COVID-19 is not a workplace or occupational hazard in most cases, and “[p]ermitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

The United States Supreme Court did not invalidate OSHA’s emergency rule outright. The rule is on hold pending resolution of the legal challenges before the U.S. Court of Appeals for the 6th Circuit.

So what happens next? The Sixth Circuit will go to work looking into all the legal challenges. But to many, the United States Supreme Court’s decision appears to shut the door on OSHA’s “vaccine-or-test” rule as applied to every employer with over 100 employees. For proponents of Federal guidance on COVID 19, the Courts will be less likely to strike down vaccine or test rules if they are narrowly targeted to certain at-risk industries. It remains to be seen whether OSHA will consider narrower rules for certain workplace circumstances. An OSHA rule narrowly tailored to vaccine or test requirements within schools is not outside the realm of possibility.

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The views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.