Beginning January 7th, the Supreme Court of the United States (SCOTUS) will come back into session. First up is the highly watched appeals related to the vaccine mandate: the OSHA Emergency Temporary Standard (ETS) and the Center for Medicare & Medicaid Services (CMS) healthcare worker vaccination mandate. These put the COVID-19 vaccine mandates front and center before SCOTUS in 2022.
The OSHA ETS would affect any employer with more than 100 employees and has gotten far more coverage and focus as it would effect more people nationwide.
On Nov. 4, 2021, OSHA published a nearly 500-page Interim Final Rule and ETS. That required mandatory vaccinations and testing for employers with more than 100 employees. Citing scientific studies and data regarding COVID-19, COVID-19 transmission in the workplace and the severity of COVID-19 as justification for the requirements.
On Nov. 6, 2021 the Fifth Circuit temporarily enjoined the enforcement of the ETS.
One week later, in a lengthy opinion, the Fifth Circuit issued a preliminary injunction order, staying the implementation and enforcement of the ETS until further order. In entering its nationwide preliminary injunction, the Fifth Circuit held, among other things, the ETS exceeded OSHA’s statutory authority, COVID-19 likely did not qualify as an emergency, and OSHA failed to establish workers were exposed to a “grave danger” or that the ETS was necessary to eliminate the “grave danger.”
In response, OSHA announced it was suspending implementation and enforcement of the ETS (vaccine mandate) pending further litigation developments.
Because challenges to the vaccine mandate were filed in virtually every court of appeals, as required by federal law, the U.S. Judicial Panel on Multidistrict Litigation conducted a lottery to select which federal circuit would hear all of the legal challenges. The Sixth Circuit “won” the lottery and the U.S. Judicial Panel on Multidistrict Litigation consolidated all challenges to the ETS in the Sixth Circuit. In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al. (6th Cir.).
On Dec. 17, 2021 a three-judge panel for the United States Court of Appeals for the Sixth Circuit, by a 2-1 vote, dissolved the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) regarding COVID-19 vaccination and testing.
In response, OSHA announced the ETS will go into effect Jan. 4, 2022 (barring any additional stays).
To account for uncertainty created by the stay, however, OSHA announced it would exercise enforcement discretion with respect to the ETS’s stated compliance deadlines. To provide employers with sufficient time to comply, OSHA announced it would not issue citations for non-compliance with any requirements of the ETS before Jan. 10 and would not issue citations for noncompliance with the ETS’s testing requirements before Feb. 9, so long as an employer had made reasonable, good faith efforts to comply with the ETS.
Now on January 7, 2022 the OSHA ETS will come before SCOTUS for oral arguments.
SCOTUS will hear oral arguments on the vaccine mandate cases before them, having already received numerous briefs from both sides and interested third parties. The Supreme Court has allotted one hour of oral argument to each of the cases. The arguments will be broadcast and available to the public at the Court’s website. The arguments will certainly highlight issues that employers have been and will continue to grapple with, and may well give a hint of how the Court will ultimately rule. Any employer who may be subject to OSHA’s or CMS’s mandate should tune in to listen.