Monday, December 27, 2021

SCOTUS: Fine, we'll look at a couple of the vaccine mandates.

Justice Kavanaugh received
the petitions and referred
them to the full court.

On December 22nd, the Supreme Court issued a pair of orders (here and here) scheduling oral arguments on two vaccine mandates for January 7, 2022: (1) the OSHA vaccine or test mandate for employers with more than 100 employees; and (2) the CMS vaccine mandate for healthcare workers. 

Now, let's temper our expectations here by noting that the petitioners are seeking a stay pending a ruling by the lower courts on the actual merits. In other words, SCOTUS will not be issuing a final ruling on whether the mandates are lawful. That said, decisions on injunctive relief are often chock-full of signals as to the judges' views on the ultimate question.

Meanwhile, OSHA has already set some enforcement deadlines: 

OSHA 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.

OSHA is also in the midst of taking comments to turn the emergency standard into a permanent standard. 

For employers, it's just more of the same uncertainty. The mandates are on for now, but will SCOTUS turn them off? Either way, we'll be waiting for even more litigation to unfold. 

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