By: Chad J. Sullivan
On Friday, January 7th, 2022, the Supreme Court heard oral arguments regarding the constitutionality of OSHA’s ETS Covid Regulations for Private Businesses, as well as CMS’s Covid Vaccine Mandate. In summary:
- OSHA ETS Covid Regulations: A number of the Justices asked questions and expressed concerns regarding the breadth of the OSHA regulations and whether the broad issue was one reserved for Congress and the states. A number of commentators believe that the questions asked by the Justices make it likely that the OSHA mandate will be overturned.
- CMS Covid Vaccine Mandate: A number of the Justices made assertions that this case is different than the one regarding OSHA regulations and compared the mandate to existing infection control measures. Some Justices also noted the lack of outcry from those regulated by the mandate (e.g., hospitals and providers). A number of commentators believe that this case is a closer call but predict that the mandate will be upheld either in full or in part.
As always, we caution that there is danger in reading too much into the Justices’ questions and how they can be used to accurately predict the ultimate decision, however, we know there is great interest in these cases and wanted to provide you with an update.
OSHA has stated that it will not issue citations for noncompliance with any requirements of the OSHA 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. Considering these deadlines for enforcement, it is believed by many that SCOTUS will rule before the end of the month.
We will continue to montior developments and send updates as they occur.