Supreme Court Ruling on OSHA Vaccine-or-Test Mandate Not Expected Before January

Yesterday, December 20, 2021, the Supreme Court of the United States  (Supreme Court) requested briefing from the federal government on the multiple challenges against the OSHA 100+ Employee Vaccination and Testing Emergency Temporary Standard (ETS).  The rule had been reinstated Friday by a divided three-judge panel of the Sixth Circuit Court of Appeals.  The briefs from the government are due Thursday, December 30.  This means that a ruling from the Supreme Court on whether the ETS will be stayed pending full review of the merits will likely come in early January.  In addition, multiple challengers have also asked the Supreme Court to review the merits of the ETS on an expedited basis.  We will likely learn whether the Supreme Court has decided to do so when it rules on the stay.

The OSHA ETS requires workers at companies with 100 or more employees to be vaccinated against Covid-19, or mask in the workplace and undergo weekly testing.  Under OSHA’s updated compliance deadlines, the agency will not issue citations for noncompliance before January 10 to employers making reasonable, good faith efforts to comply, and will not issue citations for noncompliance with the ETS’s testing requirements before February 9.  Therefore, barring intervention by the Supreme Court, employees will need to receive their final dose of the vaccine by February 9 to avoid the ETS’s masking and testing requirements.

We will be sure to keep you updated of any relevant developments. If you have any questions, please contact your Miller Johnson attorney or one of the authors.