When the Sixth Circuit breathed new life into OSHA’s vaccine-or-test Emergency Temporary Standard (ETS), the January 4, 2022 compliance deadline became real again.
Then, as I mentioned yesterday, various petitioners peppered the Supreme Court with appeals to block the ETS again. Then, last night, the Supreme Court announced that it would hold a special oral argument session — actually, two of them — on Friday, January 7, 2022.
At the first oral argument, the petitioners in two consolidated cases will get to argue to the Court that the Fifth Circuit was correct to stay the ETS and the Sixth Circuit was wrong. Of course, the government will have a chance to respond. The entire oral argument will last for one hour.
The second one-hour oral argument will focus on the Center for Medicare and Medicaid Services healthcare COVID-19 vaccine mandate (the “CMS Rule”), which is currently in play in half the States and blocked in half the States.
Let’s shift gears back to the OSHA ETS.
OSHA has previously announced that it will not issue citations for non-compliance with any requirements of the ETS before January 10, 2022. However, if the Court does not hear oral argument until January 7, 2022, that’s cutting it awfully close, yes? OSHA has not yet announced an extension of the January 10, 2022 deadline. However. OSHA will not issue citations for violating the ETS testing requirements before February 9, 2022, so long as an employer exercises reasonable, good faith efforts to comply with the standard. So, there’s a little more breathing room there.
Is it possible that the Supreme Court could rule over the weekend after the oral argument on Friday, January 7, to moot the January 10 deadline? Maybe not. Or perhaps it will rule and side with the government.
Folks, you’ve got some tough decisions to make between now and the second week of January. I’m glad I’m not in your shoes. Instead, I get paid to help you decide which, ironically, will help me buy some new shoes. Perhaps some Yeezy Boost 350s on StockX. Or maybe some new Dunks.
You’re not the only one with tough decisions to make.