Last Friday, in a 2-1 decision in In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, (6th Cir., Dec. 17, 2021), the U.S. 6th Circuit Court of Appeals dissolved a stay of OSHA's Emergency Temporary Standard that calls for employers of of 100 or more persons to require either COVID vaccination of employees or weekly testing (and masks) for unvaccinated workers. Challenges in some three dozen cases had been consolidated in the 6th Circuit which then had authority to modify or dissolve the prior stay issued by the 5th Circuit.
Among the consolidated cases was one brought by a number of Christian schools, colleges and organizations that were subject to the rule. They quickly filed an Emergency Application with the U.S. Supreme Court asking for a stay pending appeal of the 6th Circuit's decision. The Application (full text) in Southern Baptist Theological Seminary v. OSHA, (Sup. Ct., filed 12/17/2021) argues:
OSHA lacks jurisdiction to regulate religious non-profit institutions, because they are not “employers” under the OSH Act.
It goes on to contend that the OSHA rule also violates Applicants' religious freedom rights under RFRA and the 1st Amendment, saying in part:
OSHA “commandeers” Religious Institutions “to compel [their] employees” to comply with the mandate.... To ensure compliance, Religious Institutions must probe their ministers’ and employees’ intimate and personal medical decisions that often implicate their religious beliefs. This is precisely the “secular control or manipulation” that the First Amendment prohibits.... In addition, the mandate violates the First Amendment by setting the “terms and conditions of employment” to work for Religious Institutions ... and interfering with their ability to “select[] ... the individuals who play certain key roles”....
Religious Institutions exercise their faith by providing seminary training, providing Catholic and Christian education, engaging in nonprofit ministries, and operating for-profit businesses according to Christian values. The Mandate will force Religious Institutions to take faculty out of classrooms, and staff out of operating these organizations and businesses—for testing on a weekly basis or for non-compliance—which will significantly disrupt Religious Institutions’ mission, including for-profit businesses’ operations and exercise.... This burden is substantial—not mere inconvenience—because Religious Institutions’ employees are not fungible.
ADF issued a press release announcing the filing of the Emergency Application. SCOTUblog discusses the filing.
A second Emergency Application was filed by a different group of Christian organizations. The Application (full text) in Word of God Fellowship, Inc. v. OSHA, (Sup. Ct., filed 12/19/2021) contends in part:
... [T]he violation of the Ministries’ religious faiths is not cured by the provisions of the ETS and Title VII that provide them with discretion to grant religious accommodations to their employees.... The Ministries cannot put their employees to the test by requiring them to seek religious accommodations for the government-imposed vaccine mandate.... In other words, even asking their employees to make a decision of religious conscience about the vaccine mandate causes the Ministries to engage in what they believe is sin. Moreover, the mask requirement for unvaccinated employees also burdens the Ministries’ religious beliefs, because they believe that OSHA’s requirement that they mask unvaccinated employees would forcibly identify those who are unvaccinated and cause division within their organizations.... The Ministries believe they have a Biblical duty to promote unity within their organizations.
Axios reports on this filing.
