On January 7, the US Supreme Court debated a range of complex issues in a pair of oral arguments over challenges to two federal regulations requiring workplace COVID-19 precautions. Although it is unlikely the Court will issue definitive opinions for several days or weeks, the Court could quickly issue a temporary “administrative” stay while it deliberates, or an unreasoned order with opinions to follow.
The first challenged federal regulation was the Occupational Safety and Health Administration’s (OSHA) Vaccination and Testing Emergency Temporary Standard (ETS). The second was the Center for Medicare and Medicaid Services’ (CMS) Interim Final Rule (IFR) on COVID-19 Health Care Staff Vaccination. During the ETS argument, the parties challenging the standard asked the Court to reimpose a stay of its enforcement. During the CMS argument, the federal government asked the Court to lift injunctions of the IFR upheld by the US Court of Appeals for the Fifth and Eighth Circuits.
The Fifth Circuit stayed enforcement of the ETS in a ruling on November 6, 2021, the day after OSHA released the rule. Various cases challenging the rule were consolidated and transferred to the Sixth Circuit, which lifted the Fifth Circuit stay on December 17. Parties challenging the ETS immediately filed emergency applications with the Supreme Court requesting it to reimpose the stay, and on December 22, the Court directed the parties to present oral arguments on January 7, 2022.
CMS issued its IFR on the same day as the ETS, November 5, 2021. A federal district court in Missouri granted a preliminary injunction blocking CMS from enforcing the rule in 10 states on November 29. That order was upheld by the Eighth Circuit on December 13. Meanwhile, a federal district court in Louisiana granted an injunction in the remaining states, and the Fifth Circuit upheld the injunction but limited its geographic reach to the 14 states that had filed the lawsuit. The federal government filed emergency applications with the Supreme Court on December 16 seeking to overturn the injunction. As with the OSHA ETS, the Supreme Court ordered the parties to present oral arguments on this question on January 7, 2022.
The Court asked counsel on all sides pointed questions on a range of issues, but there were two main themes in both arguments:
Although the legal questions and subject matter in the two oral arguments overlap to a considerable degree, there is no guarantee that the Court will rule the same way—either for or against the regulation—in both sets of cases. Justices who may provide deciding votes gave some sign during argument that they might see distinctions between the regulations that could lead them to stay the OSHA ETS but leave the CMS IFR in force.
As noted above, detailed opinions are not expected before next week. The Supreme Court may quickly issue a brief administrative stay in the ETS case or an unreasoned opinion noting the Court’s bottom-line rulings in the cases with detailed opinions to follow.
If the Supreme Court does not issue an opinion prior to the January 10 ETS deadline, many employers will grapple with whether to (1) hold back their ETS policies and accept the (however unlikely) OSHA enforcement risk while waiting for the Court to decide; or (2) roll out an ETS policy to their employee population only to change or rescind it depending on how the Court rules. Morgan Lewis is here to work through these questions with you.
Sharing insights and resources that help our clients prepare for and address evolving issues is a hallmark of Morgan Lewis. To that end, we maintain a resource center with access to tools and perspectives on timely topics driven by current events such as the global public health crisis, economic uncertainty, and geopolitical dynamics. Find resources on how to cope with the globe’s ever-changing business, social, and political landscape at Navigating the NEXT. to stay up to date on developments as they unfold. Subscribe now if you would like to receive a digest of new updates to these resources.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Jason S. Mills
Daniel A. Kadish
Daryl S. Landy
A. Klair Fitzpatrick
Brandon J. Brigham
Emily Cuneo DeSmedt
Kaiser H. Chowdhry
Alana F. Genderson
Sharon Perley Masling
Jonathan L. Snare
Michael E. Kenneally