Will Answers Come in 2022? Supreme Court Sets January 7 Hearing on COVID Vaccine Mandates

Employers, mark your calendars!

After months of uncertainty, speculation, and numerous contradictory district and circuit court rulings, a Supreme Court announcement on Wednesday evening (December 22) has brought employers hope that the new year will bring certainty as to whether or not they are bound to follow the OSHA ETS (for those with 100 or more employees) and the CMS vaccine rule (for staff of many Medicare- and Medicaid-certified health care providers).

In an unprecedented move, the nation’s highest court set oral arguments on January 7, 2022 for both (1) emergency applications to stay the district court injunctions that have put the CMS mandate on hold in 25 states and (2) emergency applications to re-impose a stay on the OSHA ETS, which was lifted last week (December 17, 2021).

The Court will not address the third federal mandate, the Federal Contractor Executive Order, at the January 7 hearing. Traditionally, the Supreme Court acts on emergency applications such as these without oral argument and, occasionally, will convert the emergency application to a full hearing on the merits. Here, however, the full court will hear 1-hour oral arguments directly on the emergency applications.

This highly unusual development indicates that the Court desires to provide definitive answers as to whether the federal government’s vaccine mandates should be stayed or remain in effect while the various appellate courts analyze the merits of the mandates.

What Employers should Expect

While the January 7 oral arguments and the Court’s subsequent ruling will not decide the ultimate fate of the mandates or address any preemption issues (such as whether Florida’s recent legislation placing restrictions on COVID-19 vaccination requirements for employees trumps the federal rules), employers can expect some guidance as to whether these mandates will survive and be enforced going forward.

For now, here is a brief summary of the status of each rule:

1. OSHA ETS

The stay on the mandate for large employers has been lifted in all 50 states and the Department of Labor has posted on its website that OSHA will begin enforcing its emergency temporary standard on January 10, 2022. However, the Department also stated that OSHA will give employers more time—until February 9, 2022 —before it will begin issuing citations for violations of the mandate’s testing requirements, so long as covered employers are acting in good faith to implement the rule.

Although the rule is currently in effect, this is potentially subject to change pending the upcoming Supreme Court action.

2. CMS Rule

Despite the temporary injunction on the CMS IFC being lifted in 25 states, CMS’ website maintains that CMS “has suspended activities related to the implementation and enforcement of [the mandate] pending future developments in the litigation.” In other words, CMS is not currently enforcing its vaccine mandate in all states, including those where the mandate is not presently judicially stayed.

However, CMS’s position may change following the upcoming Supreme Court action.

3. Federal Contractor Rule

Three federal district courts, in Kentucky, Georgia, and Florida, have enjoined the government from enforcing the vaccine mandate for federal contractors and subcontractors set forth in Executive Order 14042. As of December 14, 2021, the injunctions cover all federal contracts in any state or territory of the United States of America.  As a result, the Office of Management and Budget issued guidance on implementing requirements of Executive Order 14042. The guidance specifically provides that the government will not take action to enforce the federal contractor vaccine mandate at this time.

The Supreme Court has not released any information regarding its plans to address the federal contractor mandate. However, the Justice Department recently filed notices of appeal of the Kentucky and Georgia injunctions.