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Supreme Court Halts President Biden’s Shot-or-Test Mandate

The U.S. Supreme Court has reinstated the stay blocking implementation of President Biden’s Shot-or-Test Mandate.  The decision came this morning, Thursday, January 13, 2022, nearly a week after the Court heard oral arguments from both sides on Friday, January 7, 2022.

Six justices, led by Chief Justice John Roberts voted in favor of reinstating the stay.  Justice Roberts was joined by Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett.  The remaining three justices – Justice Breyer, Justice Sotomayor, and Justice Kagan – opposed reinstatement of the stay.

The mandate, issued by OSHA through an Emergency Temporary Standard (ETS) requires all employers with 100 or more employees to implement a policy requiring Covid-19 vaccinations or masking and weekly testing for all employees.  That requirement went into effect on January 10, 2022.  With the stay back in place, the ETS, and therefore that requirement, is again on hold.

It is important to recognize the Court merely reinstated the stay and did not rule on the underlying issue of whether the mandate is a legal exercise of OSHA authority.  However, by reinstating the stay, the Court is indicating the opponents of the mandate are likely to win their underlying claim on the merits.  In a later Client Alert, we will provide a detailed analysis of the Court’s decision.

From a practical standpoint, this may be the end of the ETS.  An ETS may only be in place for a maximum of 6 months.  This ETS went into effect on November 5, 2021.  Thus, it only has about 4 months of potential “life” left in it.  The underlying litigation is unlikely to be resolved prior to the expiration of the ETS.  As a result, OSHA will have to go through the normal rulemaking procedure, should it wish to continue the mandate after expiration of the ETS.

For now, employers adhering to the January 10, 2022 implementation date can stand down.  However, employers should not abandon the work completed so far as there are many more arguments to be made before a final ruling on this matter will be issued.

If you have any questions or concerns, please contact Joel S. Aziere at jaziere@buelowvetter.com or (262) 364-0250 or your Buelow Vetter attorney.

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