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Supreme Court to Address President Biden’s Shot-or-Test Mandate in Early 2022

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The U.S. Supreme Court likely will not address the Biden Administration’s vaccine and testing requirements until early January of 2022.

Eight separate petitions were filed with the Supreme Court on Friday, after the 6th Circuit Court of Appeals lifted the stay on the shot-or-test mandate.  The Supreme Court asked the government to respond to these appeals by December 30, 2021.  The petitions were all addressed to Justice Brett Kavanaugh, the Trump-appointed justice who is responsible for emergency petitions arising from the Sixth Circuit.  Justice Kavanaugh can consider the requests on his own or refer them to the full Court.

The timing adds to the complications for businesses who are trying to decide whether to put policies in place or wait for the high court to rule.  Employers with 100 or more employees will have until January 10, 2022 to comply with the Biden Administration’s vaccine and testing requirements.  OSHA will give companies until February 9, 2022 before issuing citations for violating the ETS provisions.  The enforcement grace period hinges on employers “exercising reasonable, good faith efforts to come into compliance with the standard,” the DOL said.

On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS) for private employers with 100 or more employees.  Under the ETS, by January 4, 2022, all employees of said employers must be vaccinated or must wear face coverings and submit to weekly COVID testing.  Almost immediately, challenges were launched in several courts throughout the United States.

On November 6, 2021, the 5th Circuit Court of Appeals issued a stay of the mandate, placing the entire ETS on hold.  Because of the multitude of challenges around the county, the cases were consolidated and a random drawing was held to determine the Court that would hear all matters.  The 6th Circuit Court of Appeals was selected.

Late Friday afternoon, the 6th Circuit Court of Appeals reinstated the Biden administration’s vaccine and testing requirement for private employers with 100 or more employees.  On Saturday, December 18, 2021, the US Labor Department announced the new deadlines for compliance.

Given the high amount of uncertainty, the most prudent course of action is for companies to prepare as if the rule is going forward despite the possibility the Supreme Court’s conservative majority with block it.

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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