December 31, 2021

Supreme Court to Decide Shot or Test Rules

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The U.S. Supreme Court has announced that it will expedite its consideration of the Biden Administration's COVID-19 vaccine mandates.  Legal briefing is already under way and the Court will hear oral argument on January 7, 2022 on the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) mandating COVID-19 vaccination or testing.  Commonly known as the "shot-or-test" rule, the ETS is currently in effect, but OSHA has agreed to hold off on its enforcement until January 10 for all requirements except testing, and February 9 for testing requirements.

The Supreme Court will resolve the issue of whether the ETS is enforceable or if it exceeds the Administration's authority.  We have previously reported that a nationwide stay on the ETS was lifted by the Sixth Circuit, here.

In addition, the Supreme Court will also hear arguments on January 7 on the emergency Interim Final Rule issued by the Centers for Medicare and Medicaid Services (CMS), which we previously reported on here.  Currently, the CMS vaccine rule is valid in 26 states, but has been enjoined in 24 states.

Ballard Spahr's Labor & Employment Group actively counsels health systems and businesses about the status of both rules, and how to plan given the constantly shifting COVID-19 regulations and workplace safety landscape.  We continue to advise employers to have contingency plans in place and proceed carefully given the rise in COVID-19 litigation involving the workplace.

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