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Neither Business, Nor Labor Offers Justices United Fronts in Vaccine Fight

The National Law Journal

January 5, 2022

The employer vaccinate-or-test rule has been particularly contentious, even amongst business and labor groups.

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.”

. . .

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.”

Read Neither Business, Nor Labor Offers Justices United Fronts in Vaccine Fight.