On January 7, 2022, the U.S. Supreme Court will hear arguments on the federal vaccine mandates for employers with 100 or more employees and for healthcare facilities receiving federal funds. The Court has ordered additional briefing on the issues and has set one hour for oral argument.
The Occupational Safety and Health Administration (“OSHA”) released its “COVID-19 Vaccination and Testing: Emergency Temporary Standard,” 86 Fed. Reg. 61,402 (the “ETS”) on November 5, 2021. The ETS mandates private employers with 100 or more employees to adopt a policy that requires employees to be fully vaccinated against COVID-19 or submit to weekly testing and mask wearing requirements. With the litigation challenges and the timing of recent court decisions, employers now must comply with most of the ETS requirements by January 10, 2022 and the testing requirements by February 9, 2022. McLane Middleton’s webinar on the ETS shortly after it was issued is found here.
Legal challenges to the ETS and OSHA’s authority to issue such emergency rules followed. The Fifth Circuit Court of Appeals had originally stayed the enforcement of the ETS on an emergency basis on November 6, 2021 and then reaffirmed its decision on November 12, 2021 in a 22-page decision. The federal court’s stay effectively blocked OSHA’s rule on a temporary basis. My colleague’s blog post on the stay issued by the Fifth Circuit is found here.
In light of the multiple legal challenges to the ETS being brought across the country, a federal Judicial Panel on Multidistrict Litigation designated the Sixth Circuit Court of Appeals to hear the consolidated cases. OSHA filed a motion to dissolve the Fifth Circuit’s stay. On December 17, 2021, the Sixth Circuit lifted the temporary stay and granted the government’s motion to dissolve the stay of the ETS.
The Sixth Circuit’s decision was directly appealed to the U.S. Supreme Court. An application for stay was presented to Justice Kavanaugh and referred by him to the Court for oral argument. At issue on appeal is OSHA’s authority to command a vaccine-and-testing regime on large, private employers. According to information provided by the Court, an application is usually addressed to a single Justice assigned to the specific circuit or circuits, and the Justice may then decide the application or refer it to the full Court for consideration. Five Justices must agree on an application if it is before the full Court.
In addition to OSHA issuing the ETS, the Centers for Medicare & Medicaid Services (“CMS”) issued a COVID-19 vaccination mandate for eligible staff at health care facilities that participate in the Medicare and Medicaid programs. Following legal challenges, an application for stay was presented to Justice Alito of the U.S. Supreme Court and referred by him to the Court for oral argument. Authority of the Secretary of Health and Human Services to mandate a vaccination requirement is at issue on appeal.
The Court consolidated the above applications and a total of one hour has been allotted for oral argument on Friday, January 7, 2022. Additional briefing on the applications is due to the Court by 4:00 P.M. on December 30, 2021 and replies by January 3, 2022.
After the Sixth Circuit’s lifting of the stay, OSHA reported that it will “once again implement” the ETS and advised that it “will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
Accordingly, with the stay lifted on the ETS requirements, private employers who had started preparing for the ETS may want to consider taking steps to continue their planning processes to meet those mandates. Even with the emergency applications and the expedited hearing schedule, the Court will not hear oral arguments by the parties until January 7, 2022, only three days before OSHA indicated it will begin to take enforcement action. As noted above, OSHA will look for “reasonable, good faith efforts” at compliance by employers.