Vaccine Mandate Headed to Supreme Court
Our chamber has been closely monitoring the Biden Administration’s vaccine mandate on private companies in an effort to help keep our members informed of their potential responsibilities should the rule withstand it’s legal challenges. Given the notable legal developments since our last column, we thought it prudent to provide another update on where the mandate currently stands.
To recap, President Biden’s Path out of the Pandemic Plan included vaccination mandates for federal employees, employees of federal contractors, employees of healthcare providers receiving funds from Medicare or Medicaid, and employees of companies with at least 100 employees. Each of these have drawn their own respective lawsuits, however, those questioning the constitutionality of the mandate on private employers have taken most of the spotlight.
On November 5, the Occupational Safety and Health Administration (OSHA) released their Emergency Temporary Standard (ETS) which officially implemented the vaccine mandate on private companies. Not even 24-hours later, the U.S. Court of Appeals for the Fifth Circuit issued a stay on the ETS, arguing the rule “grossly exceeds OSHA’s statutory authority.”
On December 17, the U.S. Court of Appeals for the Sixth Circuit, in a 2-to-1 ruling, reinstated the OSHA ETS requiring employers with 100 or more employees to ensure their employees are fully vaccinated by January 4 or allow employees to submit weekly negative test results. This reversed the previous stay by the Fifth Circuit and placed the rule back into effect.
On December 22, the U.S. Supreme Court scheduled oral arguments for the OSHA ETS and CMS (Medicare/Medicaid Mandate) cases to occur on Friday, January 7. While this type of accelerated timeline is rare for the Supreme Court, it is indicative of their attempt to give employers some finality concerning their obligations under the federal mandates.
Still, it is unknown whether the Supreme Court will be able to issue a ruling by OSHA’s January 10, 2022 compliance date and, as of writing this article, they did not not issue an administrative stay despite at least fourteen different applications being filed for one.
To account for the litigation uncertainty, OSHA updated their enforcement policy stating that it “is exercising enforcement discretion with respect to the compliance dates of the ETS.” It will not issue any citations before January 10 and will not enforce the vaccine or testing requirement until February 9 “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
So what does this mean for companies with 100+ employees? As previously advised, we strongly recommend all employers who are subject to the OSHA ETS to prepare to comply with the mandate. We also encourage all affected businesses – members and non-members alike – to consider us as a resource as you proceed down this path.
In the meantime, we’ll keep an eye out for further developments and continue our advocacy efforts related to the rule through our involvement in the statewide Listen to MI Business Coalition. To learn more about our coalition’s efforts, visit: listentomibusiness.com.