Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On Friday, January 7, 2022, the U.S. Supreme Court will hear oral argument regarding two of the Biden administration’s most contentious COVID-19 workplace health and safety policies: the Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS), which generally requires employers of 100 or more employees to require vaccination or weekly COVID testing of their employees who work on site, and the Centers for Medicare and Medicaid Services (CMS) rule, which generally requires vaccination of all healthcare workers at CMS-covered facilities throughout the United States.
At 10:00 a.m., the Court will hear one hour of oral argument as to whether to reimpose a stay of the ETS, which is currently scheduled to go into effect on Monday, January 10, 2022. Previously, the U.S. Circuit Court of Appeals for the Fifth Circuit stayed the ETS on a nationwide basis. The various court challenges to the ETS were consolidated into a single circuit, and on December 17, 2021, the U.S. Circuit Court of Appeals for the Sixth Circuit lifted the stay, setting the stage for the ETS to go into effect. An emergency appeal to the U.S. Supreme Court was filed hours later. Details of the Sixth Circuit’s decision, and what it means for employers, may be found here. The docket and briefs in the case may be found here.
Immediately following oral argument on the ETS, at 11:00 a.m., the Court will hear argument on the CMS rule for healthcare workers. Two federal courts enjoined the CMS rule on a nationwide basis; on December 15, 2021, the Fifth Circuit modified the stay to enjoin the rule in 24 states, while allowing it to go forward in the remaining 26 (the rule is also separately stayed in Texas, which has filed its own challenge). Under the CMS rule, up to 17 million workers at over 76,000 healthcare facilities across the country would be required to be vaccinated for COVID-19. The docket and briefing in this case are available here.
Members of the public may listen to both oral arguments at: https://www.supremecourt.gov/oral_arguments/live.aspx.
A decision from the Court is likely to come in relatively short order; Littler’s Workplace Policy Institute will keep readers apprised.