SCOTUS to hear arguments on OSHA, health care vax mandates Jan. 7

Let's start off 2022 with a bang!

On Friday, January 7, the U.S. Supreme Court will hear arguments on two of the Biden Administration's COVID-19 vaccination mandates -- the Emergency Temporary Standard issued by the Occupational Safety and Health Administration, and the regulations issued by the Centers for Medicare & Medicaid Services that apply to most health care employers.

The OSHA ETS was issued on November 5 and was stayed the following day by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit. All of the ETS litigation nationwide was then transferred to the U.S. Court of Appeals for the Sixth Circuit. Last Friday, two of three Sixth Circuit judges lifted the stay. Opponents of the ETS immediately requested Supreme Court review. Earlier this week, the Court gave the Biden Administration until December 30 to respond to the request.

The ETS would require most employers with 100 or more employees to mandate that their employees be fully vaccinated (with exceptions only for reasonable accommodation) or allow unvaccinated employees the option of being being tested once a week for COVID and wearing face coverings. (Full-time remote and outdoor workers are exempt from the vaccination or vaccination-or-test requirements even if their employers are covered by the ETS.)

The current deadlines for employers to comply with the ETS are February 9 for the testing requirement, and January 10 for all other requirements. As of now, OSHA has not updated its website on the litigation since December 17. 

The CMS regulations were also issued on November 5, and they have since been enjoined in 25 of the 50 states. The CMS regulations would require vaccination of most employees of most employers who receive Medicare or Medicaid funds, as well as certain non-employees who might come on site. The Biden Administration requested review of the court decisions that had enjoined the mandate.

For states where the CMS regulations have not been enjoined, all compliance deadlines will have occurred before the January 7 argument date. The first compliance deadline under the CMS was December 5 (requiring all covered employees to have at least the first dose of a vaccine and requiring employers to satisfy all of the policy/procedural requirements). The second deadline -- for all covered employees to be fully vaccinated -- is January 4.

Employers covered by these mandates should be on the lookout for a development over the weekend of January 7-9, or on January 10. The Court’s rulings could result in a stay of the mandates pending a final decision. The Court could also decide to let the mandates take effect pending a final decision.

In the meantime, keep getting ready, just to be on the safe side.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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