Perhaps no workplace law issue has generated more controversy in recent memory than the battle over the Biden administration’s vaccine rules currently being waged at the Supreme Court. The good news? By accelerating the docket to hear oral arguments on January 7, you can feel confident that we should gain clarity about employers’ compliance obligations related to the OSHA ETS and the CMS Healthcare Vaccine Mandate before too long. This Insight will cover three areas: we’ll provide a preview of the main arguments being raised by both sides, we’ll offer up our predictions for what we expect to have happen, and we’ll give employers a step-by-step plan for what to do while waiting for the rulings.
Quick Overview of Two Rules at Issue
There are two rules at play here: a general Emergency Temporary Standard (ETS) issued by OSHA that covers employers with over 100 workers, and the CMS’s Healthcare Mandate which is specific to the healthcare industry. The main difference between the two: whereas OSHA’s general ETS provides an option for employers to test employees for COVID-19 at least weekly in lieu of mandating the vaccine, the CMS mandate does not allow for a testing option and requires a vaccination policy.
Without delving too deeply into legal technicalities, the Supreme Court is not being called upon to rule on the validity of either of these two rules. Instead, SCOTUS accepted the cases to review whether the temporary injunctions that had been issued to block the rules were properly put into place. The legal standard to determine whether these injunctions (also known as “stays”) are proper includes an analysis of whether the party seeking to block the rule is “likely to succeed on the merits” of the case they brought to strike down the rule, so the Supreme Court will inherently examine the underlying validity of the ETS and the CMS. Other questions SCOTUS will examine include whether the parties involved will be “irreparably injured” by the rule and where “public interest” lies – look for discussion of these additional points in the Court’s rulings.
Main Arguments Related to OSHA Vaccine ETS
These five main arguments will take center stage during oral argument and in the written opinion handed down by the Court:
Main Arguments Related to CMS Healthcare Vaccine Mandate
Some of those same arguments will be raised at SCOTUS regarding the CMS Healthcare Mandate, but four main differences between the two cases mean we could see the Court carve a slightly different path when it comes to this rule:
FP Predicts: What Will Happen?
We polled 33 attorneys most active on Fisher Phillips’ Vaccine Subcommittee to determine what we expect to see from SCOTUS. The results: a vast majority (79%) believe that the CMS Healthcare Mandate will be permitted to move forward, while only a slim majority (55%) believe the OSHA ETS will be given the green light.
1. Outcome No. 1: SCOTUS permits both OSHA ETS and CMS Mandate to proceed – 46%
Whether it’s by denying the challengers’ requests for injunctive relief that would block the rules from going forward pending further litigation, or by taking the extra step of ruling that the rules are legitimate, 15 of the 33 attorneys polled (46%) believe we will see SCOTUS hand a double victory to the Biden administration. Some of the reasoning behind these votes:
2. Outcome No. 2: SCOTUS permits the CMS Healthcare Mandate, but either blocks or strikes down the OSHA ETS – 33%
The second likeliest outcome according to our attorneys: SCOTUS gives the green light to the CMS Healthcare Mandate, but either blocks the OSHA ETS from taking effect while the underlying litigation takes place or takes the extraordinary step of striking it down altogether. Out of 33 attorneys polled, 11 of them (33%) believe this will take place. We turn to several attorneys operating in the healthcare field to help explain the reasoning behind this prediction:
3. Outcome No. 3: SCOTUS okays the OSHA ETS but either blocks or strikes down the CMS Healthcare Mandate – 9%
The next outcome flips the switch – the Court allows the OSHA ETS to proceed but strikes down or blocks the CMS Healthcare Mandate. Only 3 of our 33 attorneys (9%) believe we’ll see this scenario play out.
4. Outcome No. 4: SCOTUS Says No to Both the OSHA ETS and the CMS Vaccine Mandate – 12%
Finally, 4 of our 33 attorneys (12%) believe the Court will reject both vaccine rules, either by striking them both down or reinstating national injunctions blocking them from being enforced while the underlying court battles over the merits play out.
What Should Employers Do While We Wait?
The oral arguments take place on January 7, and the Court could rule at any time thereafter. We could see a ruling issued later that day, over the weekend, the next week, or whenever the Court decides to publish its opinions.
To demonstrate reasonable good faith efforts to comply with the OSHA ETS between now and January 10, employers subject to the rule should follow this five-step game plan:
If you are subject to the CMS healthcare mandate, the following five steps, described in further detail here, are critical parts of a successful plan:
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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