The Biden administration's vaccine mandate on private employers will be front and center at the Supreme Court on Friday when justices will hear arguments on an application to stay the mandate pending court action on the merits.

This comes as a stay on the mandate issued by the 5th Circuit Court of Appeals was reversed in December, reinstating the Occupational Safety and Health Administration’s (OSHA) mandate for the time being. While a number of business associations and state governments quickly filed an application for the Supreme Court to stay the mandate, OSHA's litigation update states the agency was “gratified" that the stay was lifted by the Sixth Circuit. 

"To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS (Emergency Temporary Standard) before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good-faith efforts to come into compliance with the standard," OSHA announced, though that could change again depending on the Supreme Court. "OSHA will work closely with the regulated community to provide compliance assistance."

The court will also hear arguments on the vaccine mandate for health care workers on Friday. The third mandate for federal contractors is currently stayed and not on the Supreme Court's schedule, but the Biden administration has filed an appeal. 

While oral arguments before the Supreme Court for emergency applications such as this one are rare, according to the National Law Review, more than 180 Republican members of Congress submitted an amicus brief in support of the application to stay the mandate.

The brief was organized by Sen. Mike Braun (R-IN), and signers include House Republican Leader Kevin McCarthy (R-CA), House Republican Whip Steve Scalise (R-LA), Senate Republican Leader Mitch McConnell (R-KY), and Senate Republican Whip John Thune (R-SD).

In their brief, the lawmakers argue that OSHA promulgated "a sweeping, nationwide vaccine mandate on businesses [that] intrudes into an area of legislative concern far beyond the authority of the agency,” stating it was done "through OSHA’s seldom-used ‘emergency temporary standard’ (ETS) provision that allows for bypass of notice and comment rule-making under certain circumstances." 

With this, lawmakers state OSHA exceeded its authority in enacting the ETS mandate.

In a filing for Friday's hearing, the National Federation of Independent Business (NFIB) and 25 other business associations argue that allowing OSHA's mandate to stand could give the agency "limitless" power by allowing it to target dangers that exist in the workplace only because they exist “in the world at large.” In doing so, the brief cites a number of different cases to support the argument, stating OSHA could target workplaces by regulating what employees could eat during the day to control heart disease or by requiring flu or pneumonia vaccines. 

"Like COVID-19, these societal health problems are not tethered to occupations; they appear in the workplace only because they exist in society at large,” the brief states.

In its case, NFIB underscores the idea that OSHA exceeded its authority, stating they should have favored the typical notice-and-comment process over the emergency process. 

A Nov. 9 release announcing the NFIB’s challenge against the Biden administration’s emergency temporary standard states NFIB believes that "a nationwide COVID-19 vaccine and testing mandate, monitoring and database is fundamentally a policy decision that should be left to Congress." 

At the same time, NFIB argues that OSHA's mandate would result in unrecoverable compliance costs, lost profits and sales and would further exacerbate labor shortages in small businesses.