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GRAND RAPIDS BUSINESS JOURNAL
JANUARY 10, 2022
COMMENT & OPINION
GUEST COLUMN Matthew T. Nelson and DeAndre’ Harris
SCOTUS to rule on OSHA vaccine directive
T
he U.S. Supreme Court was scheduled to hear oral arguments in a case that will have significant ramifications for employers and employees: Whether to stay the Occupational Safety and Health Administration’s emergency temporary rule that employers require all employees to be vaccinated against COVID-19 or undergo weekly testing for the disease. The Supreme Court took the exceptional step of scheduling oral arguments on the motion to stay the OSHA rules a mere three weeks after the U.S. Court of Appeals for the Sixth Circuit put the issue back into play. That speed is extraordinary in any case, but almost as rare as airborne swine for a procedural motion of whether the high court should reinstate a stay on the OSHA rules. Here, the Supreme Court’s unusual haste is driven by several unique factors. First, the case addresses the validity of the federal government’s most controversial effort to address the COVID-19 pandemic. When OSHA published its Emergency Temporary Standard, or ETS, in November 2021, the agency noted “COVID-19 has had a devastating impact on workers.” To date, more than 800,000 Americans have died from COVID-19 since the pandemic began in 2020, prompting OSHA to “take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger” of the coronavirus. The ETS mandated COVID-19 vaccinations or weekly testing for most employees of employ-
ers with 100 or more workers. But when OSHA published on Nov. 5, 2021, the response was immediate — and divisive. The first legal challenge was filed within hours of OSHA’s publication of the new rule. The ETS was challenged in multiple jurisdictions, racking up nearly three-dozen lawsuits across the country. In some of those lawsuits, the parties challenging ETS asked the courts to stay enforcement by OSHA. Second, the stay issue has generated numerous lengthy and conflicting decisions that address the merits of whether OSHA has the authority to issue the ETS. Historically, OSHA has had a hard time convincing courts that its exercise of emergency rulemaking is permissible. ETS has proven no exception. Despite the quick pace of the ETS cases, the path to the Supreme Court has been a saga. Within days of the rule being issued, the U.S. Court of Appeals for the Fifth Circuit noted “grave statutory and constitutional issues” in deciding to pause the ETS. The Fifth Circuit panel wrote an opinion explaining why OSHA was unlikely to prevail in the case. The decision and a concurring opinion totaled 22 pages. A few days after that, federal rules dealing with “multi-circuit litigation” required the cases be consolidated and heard by one court chosen by lottery. That turned out to be the Sixth Circuit, which represents Michigan, Ohio, Kentucky and Tennessee, which was chosen on Nov. 16 to review the cases. So, the Sixth Circuit inherited not only a truckload of cases but also the Fifth Circuit’s stay ruling.
Groups challenging the ETS apparently concluded they stood a better chance if the case was heard by the entire Sixth Circuit sitting en banc — as a court of 16 judges. Most cases are decided by threejudge panels. So, these groups petitioned the Sixth Circuit to do something very unusual: hear the case en banc before a typical three-judge panel had rendered a decision. This
procedure is little used, with “little” meaning “never.” Nonetheless, eight Sixth Circuit judges wanted to take the case en banc. Alas, that was one vote short of a majority. But the order denying en banc review was accompanied by a 27page opinion by Chief Judge Jeffrey Sutton that was joined by seven
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CONTINUED ON PAGE13
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David Van Andel
W
hen the clock struck midnight on Dec. 31, Van Andel Institute’s 25th anniversary year drew to a close. As we reflect on this milestone in our organization’s history, we are more grateful than ever for the community that has embraced us and helped make our achievements possible. Inscribed on a plaque in our lobby are the words of Margaret Mead: “Never doubt that a small group of thoughtful, committed individuals can change the world. In fact, it’s the only thing that ever has.” As an independent research organization, Van Andel Institute is relatively small — but we are committed to the pursuit of big, bold ideas. West Michigan’s spirit is the same; although we are not a big city like New York or Chicago, our people have vision that surpasses even the largest locales. Twenty-five years ago, Grand Rapids was relatively unknown. Today, we are nationally recognized as a desirable place to live, work and play. Around us on the Medical Mile, there are even more signs of innovation. In 2017, Michigan State
University opened the Grand Rapids Research Center. From our vantage point on Michigan Street, we are watching MSU’s Grand Rapids Innovation Park grow by the day. In the other direction, Grand Valley State University’s Daniel and Pamella DeVos Center for Interprofessional House is now open to students. Over the past quarter-century, the West Michigan community has become a life sciences hub that attracts talent from all around the world. In November, five VAI scientists were named to the 2021 Clarivate Highly Cited Researchers List — a distinction marking them as leaders in their fields. In the last year alone, we recruited six top-tier scientists to join our faculty. From up-and-coming stars to established experts in their fields, each one adds to the critical mass of scientists needed for a vibrant life sciences community. And, importantly, these six labs will bring jobs and federal research grants into the West Michigan economy. The work of our top-notch faculty are at the forefront of these efforts, and their work is underpinned by the Institute’s state-
of-the-art Core Technologies and Services — a collection of departments that offer specialized support for scientists both at VAI and collaborating organizations across the globe. These services, which include cutting-edge technology and deep expertise, are integral in bolstering our partnerships and putting VAI and Grand Rapids on the map for world-class biomedical research. VAI scientists are working hard every day, leveraging the collective strength of global collaborators to address serious health challenges like cancer and Parkinson’s disease. Ongoing projects include an exploration of how diet and metabolism influence the immune system’s ability to fight infections and disease; research into improved therapies for cancer; and a study that will seek to answer the question of whether
we would be the same person if we were born multiple times under the exact same circumstances — referred to as the “two yous” project. As much as we celebrate our growth, we know that there is no “going it alone” in science. We all have a role in developing breakthroughs that transform the way diseases are diagnosed and treated, whether that’s health care providers, scientists or the many people who make our work possible. We remain mindful of the countless challenges that face our community, our country and our world — knowing that when we work together and leverage each of our strengths for the betterment of humanity, there is no doubt that we will succeed. David Van Andel is chairman and CEO of Van Andel Institute.
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