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The Biden administration’s hotly contested vaccination requirement for businesses with 100 or more employees is bound for the U.S. Supreme Court after a federal appeals court on Friday paved the way for the rules to take effect.
Appeals are already before the high court, and the government is penciling in not-too-distant enforcement dates as the delta and omicron variants fuel more COVID-19 infections and more uncertainty for a recovering economy.
So the burning question is what action the Supreme Court will take on the rules, which will be enforced by the Department of Labor’s Occupational Safety and Health Administration (OSHA).
But here’s a crucial question too: When will the court take action?
After a Sixth Circuit panel of judges ruled 2-1 to dissolve a stay on the rules, the Labor Department announced enforcement would begin after Jan. 10.
OSHA will not issue any citations to businesses not following the new rules until at least Feb. 9, “so long as an employer is exercising reasonable, good-faith efforts to come into compliance with the standard,” the Labor Department said. The rules apply to businesses with 100 or more employees.
At least eight different applications asking for an immediate freeze on the OSHA rules pending litigation are before Brett Kavanaugh, the Supreme Court justice assigned to initially field litigation bubbling up from the Sixth Circuit.
They include petitions from 27 Republican-leaning states and an array of businesses and trade associations. On Monday, Kavanaugh gave the Biden administration a Dec. 30 deadline, by 4 p.m., to reply.
Kavanaugh could order an immediate stay himself pending review, or he could refer the matter to the full court to decide whether to pump the brakes on the rule while the case plays out, experts said.
“I’m almost certain he will turn it over to the full court,” said Timothy Jost, a professor emeritus at Washington and Lee University with expertise in health law. The chief reason is that this is “an important case that affects the entire country.”
Any initial court decisions will have outsized effect, said Robert Field, a professor and public health law expert at Drexel University’s Thomas R. Kline School of Law.
If the mandate affecting an estimated 84 million private-sector workers gets “put on pause and it takes several months before the court issues a ruling, we will have missed the chance to use the vaccine to stop omicron and get us closer to herd immunity,” Field said.
There are political and practical ramifications too, he noted.
If the OSHA regulations are paused again but later unfrozen after attorneys filled the court with legal briefs and oral arguments, Field said “workers and employers would then be used to an environment where the mandate didn’t exist. It would generate more resistance if the Biden administration came back in six months and said ‘now we are going to enforce it.’”
Three quarters of employers polled in one recent survey said they’d only go ahead with a vaccine requirement if the OSHA rules stood up in court. In a different survey, roughly one-third of businesses said if they’d only apply the requirements if required by law.
Any guess how the Supreme Court will rule on the federal vaccine mandate?
In August, Supreme Court Justice Amy Coney Barrett refused to stand in the way of Indiana University’s vaccine mandate for students and workers. The case was docketed on Aug. 6, and on Aug. 12 she denied the bid to block the mandate.
Earlier this month, the court declined to stop a New York vaccine requirement for health workers that lacked a religious exemption. It took the court one month to consider briefs and decide the matter, though Justices Neil Gorsuch, Clarence Thomas and Samuel Alito dissented. (That echoed the court’s October refusal to get involved in a case about the lack of religious exemptions in vaccine requirements for Maine’s health workers.)
Even still, the justices “have not really stepped into it yet. I think they are waiting for the right case,” said Patricia Pryor, an attorney at Jackson Lewis, a national law firm representing businesses and management. Given the magnitude, the OSHA one might be it, Pryor said.
“They generally have been deferential to mandates. To me, surprisingly so,” said Field. But he cautioned against reading the tea leaves of past decision to guess the future. Those are cases about requirements from employers, states and other entities that aren’t the feds.
“This does raise other legal questions about federal government authority, in particular, the authority to take emergency action,” Field said.
The Dec. 30 response date in the OSHA cases is the same deadline for court papers in related cases on the fast track. The Biden administration wants all healthcare providers to have vaccinated staff if they are treating patients on Medicare and Medicaid. Through a tangle of litigation, a court stay on the proposed requirement now applies to approximately half the states in the country, according to the Associated Press.
When should businesses prep for a possible federal vaccine mandate?
Businesses should start preparing now for the mandate to take effect, said Pryor. This way, if the rules happen as the government plans, Pryor said employers will not be caught flat-footed.
“This means employers need to collect vaccination status, institute a policy, and provide support for vaccination (paid work time to receive the vaccine, and use of paid time to recover from the vaccine) by Jan. 10,” she said. They’ll have the Feb. 9 deadline to start a testing program.
If that sounds tight, that’s because it is, said Field. “This puts employers in an incredibly difficult spot. Either in two weeks, they are going to have to implement rules that substantially change the way they do business, or they won’t.”
“If I were an employer, I’d want more than two weeks to know for sure if I had to do this,” he said.
