By Jaycee Booth and Adam W. Childers
Set against the backdrop of a continuing rise in COVID-19 cases across the country, the U.S. Supreme Court has scheduled high-stakes expedited oral arguments on Jan. 7, 2022, in key federal vaccine mandate cases. The cases involve the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA), which requires a vaccine-or-test mandate for private employers with more than 100 employees.
Lower courts remain split on the constitutionality of the ETS. The Fifth Circuit Court of Appeals temporarily stayed the enforcement of the OSHA ETS in November, but just last week, the Sixth Circuit Court of Appeals dissolved the stay and reinstated the ETS. As a result, several petitioners urged for Supreme Court intervention by filing emergency applications to reinforce the stay until the case could be heard on oral argument. The Sixth Circuit’s ruling, however, will remain in place until the Supreme Court acts on the petitioners’ request. Importantly for employers, OSHA has indicated that it will not issue citations for failure to comply with the ETS vaccine mandate until Jan. 10, 2022, and OSHA will not issue citations for noncompliance with the ETS testing requirements before Feb. 9, 2022, so long as an employer is exercising reasonable, good-faith efforts to come into compliance with the standard.
The Supreme Court’s decision to fast-track oral arguments on the vaccine mandate cases was just the latest twist in what has been months of must-watch legal drama regarding the vaccine mandates. Perhaps the new year will finally provide employers clarity regarding the legality of rules set to impact millions of employees and their employers across the U.S. Crowe & Dunlevy’s Labor & Employment Practice Group will be closely monitoring the arguments on Jan. 7, and will be sure to get the word out as soon as a decision is reached. As we wait for the Supreme Court’s ruling, private employers with more than 100 employees should continue to remain steadfast in their efforts to put in place all necessary policies and protocols to be in compliance with OSHA’s vaccine and testing mandates in the event the ETS survives its next day in court.
If you have questions regarding OSHA's ETS, please contact Adam W. Childers, Jaycee Booth or another member of the Labor & Employment Practice Group.