Employers await word from SCOTUS re OSHA rule mandating vaccine for large employers

With OSHA having said it will wait at least until January 10, 2022 to enforce its rule implementing President Biden’s vaccine mandate for large employers and even then that it will do so with consideration for confusion surrounding the rule’s status and wait another month before enforcing the vaccine-or-test mandate, the Supreme Court is now poised to rule on the constitutionality of that and other of President Biden’s mandates. It has been reported that in total some 27 states have already signed on to various of the challenges, not to mention multiple amici such as business and religious organizations. The Supreme Court just ordered briefing in response to the requests for stay is due no later than December 30, 2021, and that the stay requests will be heard for oral argument on January 7, 2021. This may portend a Supreme Court ruling between close of oral arguments January 7, 2021, and before OSHA’s intended enforcement start-up January 10, 2021.

Having said that, the challengers have also asked for stays from the Sixth Circuit itself and administrative stays from the Supreme Court (a different procedural form of stay than that which will be heard January 7), so it is possible that stays could come from either source sooner, especially so that issues are frozen and preserved for proper consideration by the Supreme Court.

When the Supreme Court rules on stays, will it also resolve the mandates’/OSHA rule’s constitutionality and legal enforceability? At this point, underlying litigation of the mandates is in its infancy across the country. None of the substantive issues in those cases have yet reached the Supreme Court. However, various of the challengers are asking the Court to, not just freeze the mandates but also to, bypass normal judicial procedures and immediately take their cases on appeal (accept certiorari).