ACLL Takes Vaccine-Mandate Fight to Supreme Court

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The Roberts Court, April 23, 2021 Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Photograph by Fred Schilling, Collection of the Supreme Court of the United States

Today, the Alabama Center for Law and Liberty (“ACLL”) asked the United States Supreme Court to stay OSHA’s vaccine mandate on behalf of FabArc Steel Supply, Inc., an Alabama company whose President, Tony Pugh, has religious objections to forcing his employees to submit to the vaccine mandate.

On November 5, OSHA released an emergency temporary standard (“ETS”), which it had done only nine other times in its existence and had not done successfully for about 30 years, ordering all companies with 100 employees or more to vaccinate their employees or submit them to weekly testing. The U.S. Court of Appeals for the Fifth Circuit stayed the mandate before the case was transferred to the Sixth Circuit. But on December 17, one week before Christmas Eve, the Sixth Circuit voted to lift the stay. OSHA then announced that it expects employers to comply with the mandate by January 10 (but that it would give some businesses until February 9 to comply with the testing component of the mandate).

Consequently, FabArc and Pugh asked the Supreme Court to step in and put the mandate on hold. The application specifically asked for an administrative stay by December 24 so that the people affected by the mandate could enjoy the holidays with their families instead of scrambling to comply with the January 10 deadline. It also asked the Court to stay the mandate while the Sixth Circuit and the Supreme Court considered whether it is legal. Finally, if the Court was willing, the application asked the Supreme Court to take the entire case now instead of waiting on the Sixth Circuit to make a decision.

Matt Clark, ACLL’s President, said, “Demanding that business owners implement the vaccine mandate between now and January 10 sounds like a political twist on How the Grinch Stole Christmas. Implementing this mandate will take more than just several weeks, especially when many employees are taking off for the holidays.”

Clark also said, “There is no question that OSHA exceeded its lawful authority and that the Religious Freedom Restoration Act of 1993 protects FabArc and Pugh’s rights to say no. We believe the Court will at least stay the mandate, and we hope that it will do so by December 24.”