Here’s an update on the OSHA vax-or-test mandate following today’s Supreme Court oral argument


As a younger lawyer, I once told a client — right before an age discrimination trial — that winning the case would be like sinking a two-foot putt.

I nearly choked on those words when, during deliberations, the jury asked the judge how unemployment compensation should factor into an award of backpay. Fortunately, the jury also asked to be recharged on age discrimination, came to its senses, and we won! But I learned a lesson about predicting outcomes for a client.

So take what I am about to tell you with a grain of salt and know that I am not guaranteeing the outcome of whether the Supreme Court will stay OSHA’s COVID-19 vax-or-test mandate.

I listened to all two hours of oral argument today. (I live-tweeted it too.) And, if I had to predict a winner, I’m going 6-3 in favor of a stay with Justices Breyer, Kagan, and Sotomayor dissenting.

I won’t detail the rationale here. My tweets take care of that. I sense that all Justices had this matter decided before the oral argument.

If I had to guess, the Supreme Court will implement the stay this weekend. So, hopefully, I’m right. And for those of you scrambling between now and January 10, it will be just another Monday. But, again, no guarantees.

If the Court rules between now and Monday, I’ll add a blog post and follow up with critical analysis.

“Doing What’s Right – Not Just What’s Legal”
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