Supreme Court Schedules Hearing on OSHA Vaccine/Testing Mandate

In a rare move, the United States Supreme Court scheduled a special hearing for January 7, 2022, to consider challenges to the OSHA ETS vaccine and/or test mandate and the Centers for Medicare & Medicaid Services vaccine mandate for healthcare workers. While the imminent issue before the Court is whether to allow the mandates to go into effect while litigation is pending, the Court’s decision will also foreshadow its ultimate position on OSHA’s overall regulatory authority. Cities with 100 or more employees should continue preparing for the OSHA ETS vaccine and/or test mandate to be enforced beginning January 10, 2022.

On Friday, December 17, 2021, the U.S. Sixth Circuit Court of Appeals issued a decision that lifted the U.S. Fifth Circuit Court of Appeals’ stay suspending the OSHA ETS vaccine and/or test requirements.

Kentucky Attorney General Daniel Cameron promptly filed a petition with the United States Supreme Court to request another suspension of the OSHA ETS and a full review of the case. Calling the regulation “a historically unprecedented administrative command,” the petition joins the request of multiple entities throughout the country that challenge the regulation as an unconstitutional overreach of administrative authority.

In anticipation that the vaccine and/or test mandate will go into effect, the Department of Labor (DOL) announced a relaxed enforcement approach due to the uncertain legal landscape. The DOL issued the following statement:

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 January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

Information about the OSHA ETS can be found here.

KLC will continue to monitor the developments and provide updates as they occur. Contact Andrea Shindlebower Main, KLC personnel services manager, or any KLC Municipal Law Department member for questions or more information.