January 6, 2022 5:46pm
Supreme Court hears vaccine mandate case, enforcement and timeline remains unclear
After months of back-and-forth rulings in lower federal courts, the Supreme Court is set to hear oral arguments on Friday regarding President Biden’s federal vaccine mandate for private employers with over 100 workers. The mandate was implemented through the Occupational Safety & Health Administration’s (OSHA) emergency temporary standard (ETS) and requires all employees to be vaccinated against COVID-19 or submit to weekly testing. Following a ruling by a federal judge in December, the ETS is slated to go into effect on Monday, January 10, but OSHA has stated that they will not fine employers until February 9.
While the Supreme Court’s expedited review of the ETS is significant, they will not be deciding on the validity of the rule at this time. Instead, the Supreme Court will review the case to determine whether the temporary injunction previously issued to block the rule is proper. In addition to the private employer mandate, the Supreme Court will also review the Centers for Medicare & Medicaid Services (CMS) mandate for healthcare workers, which is currently blocked in Kentucky – again, not on the validity of the rule, but on whether the previous injunction was proper.
While uncertainty regarding the timeline remains, businesses who wish to begin taking steps to get into compliance should the mandate go into effect can do the following:
- Before January 10, assess and track the vaccination status of all employees. You should also decide if you will allow employees to provide weekly proof of negative COVID tests in lieu of vaccination and be prepared to track those tests.
- All unvaccinated employees must wear masks at all times. This requirement went into effect in December.
- While the mandate went into effect on January 10, OSHA will not begin enforcing the requirement or issuing fines before February. If workers are not vaccinated before February 9, employers who opt to offer a testing option must begin tracking proof of negative COVID tests.
- While OSHA and the Biden administration claim that the cost of testing will fall on employees, GLI is monitoring the situation as current Kentucky law states that employers could be responsible for paying for tests.
There is no defined timetable for the Supreme Court to issue its decisions, but given the nature of the challenges, expedited rulings are expected in a matter of days or weeks. Stay tuned to Policy Distilled for more information as these cases continue their way through the courts.