In a rare move, the Supreme Court scheduled an expedited hearing on January 7, 2022 to hear oral argument and legal challenges to two of the vaccine mandates that are pillars of President Biden’s comprehensive plan to prevent the spread of COVID‑19.
The Supreme Court will consider an appeal from a decision by the United States Court of Appeals for the Sixth Circuit, which lifted a stay of the OSHA Emergency Temporary Standard (ETS) mandate that had been issued by a separate appellate court. The OSHA ETS requires employers with 100 or more employees to be vaccinated or tested weekly. The Supreme Court will also consider legal challenges to a separate vaccine mandate issued by the Centers for Medicare and Medicaid Services (CMS) for covered providers who participate in Medicaid and Medicare government programs as well as others covered by the CMS vaccine mandate.
OSHA, after issuance of the decision by the Sixth Circuit, announced that it would not issue citations for (i) non-compliance with the ETS before January 10, 2022, and (ii) non‑compliance with the standard’s testing requirements before February 9, 2022, so long as an employer exercises reasonable, good faith efforts to come into compliance with the standard.
To satisfy the requirements of the ETS, employers must:
- Develop, implement, and enforce a policy requiring employees to be fully vaccinated or submit to testing.
- For the testing requirement, employees that are not fully vaccinated must be (i) tested at least weekly, if the employee is reporting to the workplace at least once a week; or (ii) tested within 7 days before returning to work, if the employee is away from the workplace for a week or longer. Employers do not have to pay the costs associated with testing under the ETS.
- Require employees that are not fully vaccinated to wear masks when indoors or when occupying a vehicle with another person for work purposes.
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
- Provide employees with reasonable time, including up to four hours of paid time, to receive each primary vaccination dose (does not include the booster).
- Provide employees with reasonable time and paid sick leave to recover from side effects experienced following each primary vaccination dose (does not include booster).
- Require all employees (regardless of vaccination status) to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; immediately remove any employee from the workplace who tests positive for COVID-19 or is diagnosed with COVID-19; and keep employees removed from the workplace until they meet the CDC’s criteria for returning to work.
- Report work-related COVID-19 fatalities to OSHA within 8 hours of learning of them, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about them.
- Provide employees the following in a language and at a literacy level the employee understands:
- Information about the requirements of the ETS;
- The CDC’s document “Key Things to Know About COVID-19 Vaccines;”
- Information about OSHA’s protections against retaliation and discrimination; and
- Information about laws that provide for criminal penalties for knowingly supplying false statements or documents.
Although the Supreme Court has scheduled oral argument for January 7, 2022, it is unclear when the Court may actually issue a ruling with respect to the legal challenges that have been made to the mandates, and what the ruling will be.
Accordingly, employers subject to the mandates (as well as employers arguably subject to the mandates) should promptly consult with counsel to discuss appropriate next steps, which include preparing for compliance with the requirements of the OSHA ETS. Employers should also promptly consult with counsel regarding any state laws that prohibit, limit, or require employer-mandated COVID-19 vaccinations, and any state OSH plans that could apply to their organization.
Notably, the Supreme Court is not considering Executive Order 14042 and the corresponding Safer Federal Workforce Task Force Guidance, which requires employees working on or in connection with covered federal contracts or working at a covered contractor workplace to be vaccinated, in its expedited hearing. Currently, Executive Order 14042 and the Task Force Guidance are stayed. Accordingly, federal contractors with 100 or more employees should also consult with counsel regarding the applicability of the OSHA ETS to their organization.