Seyfarth Synopsis: On January 7, 2022, in an extraordinary open session, the Supreme Court will reconsider the dissolved stay of the OSHA ETS, as well as the injunctions blocking the CMS healthcare vaccination mandate in 25 states.

As we previously blogged, on December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS in a 2-1 order.

But the litigation drama continues. Shortly after the Sixth Circuit overturned the ETS stay, petitioners filed numerous emergency stay applications with the United States Supreme Court. Justice Brett Kavanaugh, who oversees the Sixth Circuit, directed the government to file opposition papers defending the stay by December 30, 2021. In an unusual and extraordinary action, the Supreme Court announced that it will hear oral arguments on the stay of the federal Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), as well as the healthcare worker mandate through the Centers for Medicare and Medicaid Services (CMS), at a January 7, 2022 special session. The proceeding will place the Supreme Court in the middle of a simmering debate on the validity of vaccine mandates covering private employers, and the Court’s decision may foretell the final outcome and survival of two of the major private employer vaccine mandates. The Court will likely consider whether there is:

  • “reasonable probability” that four Justices will agree to review the merits of the case;
  • a “fair prospect” that a majority of the Court will conclude that the decision below on the merits was incorrect; and
  • irreparable harm from denying the stay.

Justice Kavanaugh may find it appropriate to engage in a balancing test to consider the parties’ harms and the public interest.

While we await the Supreme Court’s decision concerning the ETS and the CMS regulation stay applications, the Sixth Circuit will continue to consider the merits of the ETS. In the meantime, OSHA’s ETS is currently in effect, and employers must work toward compliance. OSHA has effectively reset the ETS’s compliance deadlines to January 10, 2022 (originally December 6, 2021) for the majority of the ETS’ requirements, and February 9, 2022 (originally January 4, 2022) for employers to begin testing employees who are not fully vaccinated, to account for its stayed period. The 21 OSHA State Plan states have been instructed to adopt the federal ETS or release their own ETS, at least as protective as the federal ETS, by January 24, 2022, to take effect within 30 days.

The Biden Administration’s novel strategy to get more Americans vaccinated has seen significant litigation surrounding all three of its legal mandates for private sector employers: the aforementioned CMS regulation and ETS, as well as the federal contractor mandate. The federal contractor mandate has been preliminarily enjoined on a nationwide basis by federal district courts, and pending the upcoming Supreme Court oral argument, the CMS mandate similarly is enjoined in 25 states.