In a pair of orders issued this evening [December 22, 2021], the United States Supreme Court announced it will hear the ongoing legal challenges to the so-called employer “vaccine mandates” issued last month by the Occupational Safety and Health Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS). The Court was not scheduled to return to the bench following the Christmas and New Year’s holidays until Monday, January 10, 2022. However, the Court said today that it will hear oral arguments on Friday, January 7, 2022. The Court deferred ruling on whether to block the new rules until after hearing the challenges.
The OSHA Emergency Temporary Standard on COVID-19 Vaccination and Testing (ETS) mandates that employers with 100 or more employees require their employees be vaccinated against COVID-19 or undergo weekly testing. The CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (IFR) requires virtually every health care worker in the country to be vaccinated.
The Supreme Court’s announcement comes just days after the United States Court of Appeals for the Sixth Circuit lifted the stay of enforcement on the OSHA ETS. Following the Sixth Circuit’s decision, OSHA announced that it will begin enforcing the ETS on January 10, 2022. However, it will not issue citations for noncompliance with the ETS testing requirements prior to February 9, 2022, so long as the employer is exercising reasonable, good faith efforts to come into compliance.
The stay of enforcement on the CMS IFR was lifted as to 25 states last week by the United States Court of Appeals for the Fifth Circuit. The other 25 states remain under a stay. CMS previously issued a memorandum stating that it “will not enforce” the IFR while the stays remain in place. However, CMS has not provided further guidance since the Fifth Circuit’s decision as to whether it will seek to enforce the IFR in states which are no longer subject to the stay.