Supreme Court to Weigh in on Vaccine Mandates at the Eleventh Hour
On December 22, 2021, the Supreme Court of the United States issued an order granting expedited review of legal challenges to the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) and the Centers for Medicare and Medicaid Services’ Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (“CMS Vaccine Mandate”). The Court will consider four appeals, consolidated into two separate sets of oral arguments to be heard on January 7, 2022.
The first set of consolidated cases concerns the enforceability of the ETS which requires employers with 100 or more employees to ensure each of their workers are fully vaccinated or tested for COVID-19 on a weekly basis. The day after the ETS became effective, the U.S. Court of Appeals for the Fifth Circuit stayed its enforcement nationwide. Following the Fifth Circuit’s stay, 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 reversed the Fifth Circuit’s decision and dissolved the stay rendering the ETS once again enforceable. An emergency appeal to the U.S. Supreme Court was filed hours later asking the Court to re-stay enforcement of the ETS following the Sixth Circuit’s decision.
The second set of consolidated cases concerns the CMS Vaccine Mandate which generally requires vaccination of all healthcare workers at CMS-covered facilities throughout the United States. By late November two federal district courts issued injunctions effectively blocking enforcement of the CMS Vaccine Mandate nationwide. 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, one of which is Illinois.
Given the Supreme Court’s rare decision to hear expedited oral arguments for an emergency stay application, it is evident that the Court wishes to provide conclusive answers as to whether the ETS and the CMS Vaccine Mandates should be stayed or remain in effect while the various appellate courts determine their merits.
Technically the Supreme Court’s ruling following the January 7, 2022 hearing will not decide the ultimate validity of the ETS or the CMS Vaccine Mandate; rather, the Court will decide whether the temporary injunctions issued to block the mandates were properly put into place. However, with respect to the ETS, because the mandate is time-limited (the OSHA mandate can last only six months), depending on how quickly the Supreme Court issues its decisions, the Court’s stay decision could essentially decide whether it goes into effect at all.
Additionally, because the legal standard to determine whether these injunctions are enforceable includes an analysis of whether the party seeking to block the rule is “likely to succeed on the merits” of their arguments against the mandates, an examination of the underlying validity of the ETS and the CMS Vaccine Mandate is inevitable.
The January 7, 2022, oral arguments will undoubtedly focus on questions employers have been and will continue to grapple with and may well give a hint as to how the Court will ultimately rule. Thus, employers can at least expect some guidance into the justices’ opinions and as to whether these mandates will survive and be enforced going forward.
In the meantime, while we await the Supreme Court’s decision concerning the mandate’s stay applications, employers subject to the ETS and the CMS Vaccine Mandate should continue to prepare for compliance.
While the Supreme Court is expected to make a decision relatively quickly, because both mandates are presently enforceable to some degree, until a decision is made, employers should act under the assumption that the ETS and the CMS Vaccine Mandate will be upheld. OSHA’s current compliance deadlines for the ETS are January 10 and February 9, 2022. Similarly, the Centers for Medicare and Medicaid Services Enforcement recently announced it will begin enforcing the CMS Vaccine Mandate in states where the Vaccine Mandate is not enjoined. Ensuring that a workplace is in compliance with the vaccine mandates is no small task and failure to comply with OSHA and CMS requirements while the Supreme Court deliberates could result in employers facing steep penalties. For more information on employer obligations see the OSHA ETS FAQ, the CMS FAQ, and stay informed of any updates in your state as the situation develops.