U.S. Supreme Court To Review Vaccine Mandates

By Charles P. Keller, Brett W. Johnson, Brian J. Mills and Jennifer R. Yee

Following the U.S. Sixth Circuit Court of Appeals three-judge panel handing down a split decision reinstating the OSHA Emergency Temporary Standard (“ETS”) vaccination mandate, numerous emergency applications were filed with the U.S. Supreme Court. The Petitioners are seeking expedited review of their applications to overturn the Sixth Circuit decision.

Late yesterday afternoon, in a pair of orders, the U.S. Supreme Court decided to consider four appeals relating to the OSHA ETS as well as the Centers for Medicare & Medicaid Services healthcare worker vaccination mandate. The four appeals of these two different vaccination mandates have been consolidated into two separate oral arguments scheduled to take place on January 7, 2022. The orders also note that a total of one hour is being allotted for oral argument in each one of the cases. 

Leading up to yesterday’s announcement, U.S. Supreme Court Associate Justice Brett M. Kavanaugh requested on Tuesday that OSHA respond to the Petitioners’ appeals, which are also seeking a stay of the Sixth Circuit decision pending the U.S. Supreme Court decision. OSHA has until December 30, 2021 to submit its response. At this point, the U.S. Supreme Court has declined to issue any stay in the enforcement of the OSHA ETS pending the January 7, 2022 expedited oral argument. It is likely that the U.S. Supreme Court will address the stay issue during such oral argument.

As the legal issues proceed to the U.S. Supreme Court for review, yesterday, Fed OSHA informed the OSHA state plan states that such state agencies have until Friday, January 7, 2022 to inform federal OSHA of the specific state plan’s intent to adopt the OSHA ETS, reject it, or modify, amend, or revise certain provisions of the OSHA ETS. Following that notice, each state plan state has until January 24, 2022 to approve the OSHA ETS, implement it, and begin enforcement of its provisions.

With Fed OSHA continuing to move forward with the implementation of the OSHA ETS, employers in Fed OSHA jurisdictions may wish to take steps to comply with the ETS, including:

1) Continue to monitor legal developments.

2) Review your COVID-19 Plan and update, if necessary, your vaccination, testing and mask provisions.

3) Decide which course of action you are going to take to comply (mandatory vaccination v. weekly testing and mask?).

4) Discuss and prepare procedure to enact for testing the unvaccinated. (how are you going to test?).

5) Continue to encourage employees to get vaccinated.

6) Update your employees as to the status of this issue and notify employees of the Company's policy on the obligations and costs of being unvaccinated and their testing obligations.

7) Review any new federal, state, and local government mandated safety protocols or guidance as a result of Omicron variant.

If you have operations in a state plan state, you may want to determine how your state OSHA agency is going to adopt and implement the Fed OSHA ETS. State plan states may react differently.