The Supreme Court (SCOTUS) announced Wednesday it will hear oral arguments regarding the legality of enforcement of the Biden administration’s federal COVID-19 vaccine and testing mandates for large employers and health care facilities. The federal CMS mandate applies to employees of certain healthcare sectors and requires proof of vaccination. The OSHA mandate applies to companies with at least 100 employees and allows for either proof of vaccination or weekly testing of employees.
Four Emergency Appeals Consolidated into Two Oral Arguments
National enforcement of the mandates is currently slated to begin in January 2022, but various petitions and challenges have embroiled the nation’s courts, resulting in a swiftly evolving legal environment. Four emergency appeals to SCOTUS have been consolidated into two oral arguments set for Jan. 7, 2022, with each argument scheduled to last one hour. The Biden administration will be defending the mandates, represented in oral arguments by Elizabeth B. Prelogar of the Department of Justice. The states leading the challenge to the mandates will be represented by their respective attorneys general.
Challenges to Vaccine Mandates
The high court has received a slew of emergency applications for relief from the mandate, led by a push from 27 Republican-controlled states, including Ohio. Other organizations, including religious groups, private businesses and various stakeholders have also challenged the mandate on statutory authority, religious freedom and First Amendment grounds. A Fifth Circuit stay of the OSHA mandate was previously set to go into effect on Feb. 9, 2022. The scheduled Fifth Circuit stay was dissolved this past Friday by a separate, 2-1 divided panel of the Sixth Circuit, teeing up the scheduled SCOTUS review of the OSHA mandate. The CMS mandate separately has been stayed in part by the Fifth Circuit.
Enforcement to Begin in January if Supreme Court Does Not Strike Down Mandates
Justices Kavanaugh and Alito were asked to intervene in various lower court cases, responding with the Wednesday Orders referring the requests to the full Court. The oral arguments will expedite and expand the typical review by calling a special sitting of SCOTUS. The results of the oral arguments remain to be seen, but employers should continue to prepare for these mandates, as enforcement is to begin in January 2022 if SCOTUS does not strike them down. To discuss further and remain up to date on the latest developments of the pandemic-related to employment concerns, contact KJK’s Rob Gilmore at rsg@kjk.com or 216.736.7240.