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January 10, 2022

U.S. Supreme Court Hears Case Regarding Federal Private Sector Vaccine Mandate

On Friday, January 7, the nine justices on the U.S. Supreme Court heard arguments in the case challenging the Occupational Safety and Health Administration’s (OSHA) vaccine and testing mandate for private sector employers with 100 or more workers.

Most analyses said the justices appear divided. According to The Hill, for example, during several hours of oral arguments, the court’s six more conservative-leaning justices posed sharp questions about whether a federal workplace law that Congress passed nearly 50 years ago actually gives OSHA the legal authority to enact such an expansive rule.

The Hill said the court’s three more liberal-leaning justices focused more on whether the rule was in the public interest and what the public health impact would be if the court blocked the OSHA policy from going into effect.

Read more analysis of the deliberations here, here, and here.  The transcript of the hearing is here.

While it is unclear when the court will issue a ruling in this case, it is likely to be soon. In the meantime, there are other dates to consider.

  • Before the December holidays, OSHA announced a modest move to adjust compliance deadlines for the rule. The agency said it would not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022 provided employers exercise reasonable, good faith efforts to come into compliance with the standard.
  • The OSHA rule that the Supreme Court considered last week is an Emergency Temporary Standard (ETS) that may only be in place for a certain period of time and would need to be replaced with a more permanent policy after that time elapsed. While the ruling on the ETS almost certainly will impact the permanent policy, OSHA will continue to take public comment until January 19, 2022 on how it should proceed with vaccine and testing requirements over the longer term. Learn how to submit comments here and here.

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