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Vaccine Mandate Heads to the Supreme Court

Justices to hear challenges to OSHA requirements for businesses on Jan. 7
Supreme Court
Photograph: Shutterstock

WASHINGTON — The U.S. Supreme Court will hold a special session on Jan. 7 to consider challenges to the Biden administration’s vaccine mandate, the high court has announced. It will hear arguments regarding the Vaccine Mandate Emergency Temporary Standard (ETS) from the U.S. Occupational Safety and Health Administration (OSHA), consolidating several cases.

President Biden in September announced that convenience-store retailers, restaurant companies and other businesses with at least 100 employees have until Jan. 4 to ensure that their workers are fully vaccinated against COVID-19. The mandate will affect approximately 84 million U.S. workers. Employees who are not fully vaccinated would have to wear face masks and be subject to weekly COVID tests. There would be exceptions, including for those who work outdoors or only at home.

A federal appeals court panel on Dec. 17 allowed President Joe Biden’s COVID-19 vaccine mandate to move forward, reversing a stay. The decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati overruled a decision by a judge in the U.S. Court of Appeals for the 5th Circuit in New Orleans that had paused the mandate nationwide.

While the deadline of OSHA’s Vaccine Mandate Emergency Temporary Standard technically remains Jan. 4, it will not be enforced until Jan. 10.

“To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard,” OSHA said in a notice posted on its website.

In a statement on Dec. 22 after the court announced it would hear arguments, the White House said, “Especially as the U.S. faces the highly transmissible Omicron variant, it is critical to protect workers with vaccination requirements and testing protocols that are urgently needed. At a critical moment for the nation’s health, the OSHA vaccination or testing rule ensures that employers are protecting their employees. … We are confident in the legal authority for both policies and [the Department of Justice] will vigorously defend both at the Supreme Court.”

The National Association of Convenience Stores (NACS) is among the groups and businesses suing OSHA over the mandate. In its lawsuit, NACS said c-store and fuel retailers generally support their employees being vaccinated and have offered incentives and paid time off for vaccinations; however, some NACS members expect they will have many employees quit their jobs rather than receiving vaccinations against their will, Lyle Beckwith, NACS senior vice president of government relations, said. “Our industry is facing a labor shortage and supply chain disruptions,” he said. “The OSHA rule will make all of this worse, and everyday Americans will take the brunt of the problems it creates.”

The high court’s decision to quickly hold arguments on the requirements was unusual, reported the Associated Press. The court was not scheduled to hear cases until Jan. 10. Both issues arrived at the court on an emergency basis, and the court usually quickly decides emergency applications without the more typical full briefing and oral argument.


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