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Is Your Company Required to Vaccinate Monday? U.S. Supreme Court Could Decide Soon

Business owners and HR managers who have 100 or more employees got a little closer to a resolution over the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard when both sides argued before the U.S. Supreme Court today.The standard requires employers with 100 or more employees to either mandate vaccinations for all, or to require your…

Business owners and HR managers who have 100 or more employees got a little closer to a resolution over the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard when both sides argued before the U.S. Supreme Court today.

The standard requires employers with 100 or more employees to either mandate vaccinations for all, or to require your unvaccinated employees to take weekly Covid tests and wear a mask unless they work alone or 100 percent outside, among other things. These are the main objections.

The Sixth Circuit Court lifted the stay on the standard on December 17, and if the court doesn’t reenact the stay by Monday, it will go into effect on Monday. Although they may respond quickly, employers don’t necessarily need it. OSHA stated that, as long as companies operate in good faith ,” enforcement will not start until February 9, giving the court more time to make a decision.

While the briefs tend to be a more substantial influence on the justices than the oral arguments, you can get some idea of what to expect from them. Here’s what you need to know:

The Possible Outcomes

OSHA attorney Phillip Russell, an equity shareholder at the employment law firm Ogletree Deacon, gave four possible outcomes, each with its own set of issues for business owners.

  1. SCOTUS enters an indefinite stay pending further action by either SCOTUS or the 6th Circuit;
  2. SCOTUS enters a brief stay for the Court to further consider the briefing and oral arguments before addressing an indefinite stay;
  3. SCOTUS denies the applications and allows enforcement to begin as OSHA wants on Monday, January 10; or
  4. SCOTUS denies the applications and allows enforcement to begin, but enters a brief stay giving employers time to comply

In other words, a quick decision may not be a final decision. It is possible that there will be many more steps before a final decision is made.

Opinions Seemed to Form Along Ideological Lines

Covid has been political for a long time, and those political lines seemed evident in the hearings. As employment attorney and partner Jon Hyman at Herzer Wickers Panza says:

Based on the tone and tenor of the questions, there exists a clear, and not unsurprising, left/right divide on the court, which does not bode well for the ETS going into effect. I don’t think there are 5 votes against reinstating this stay.

For example, Justice John G. Roberts Jr. (appointed by George W. Bush) and Justice Neil M. Gorsuch (appointed by Donald Trump) both indicated that federal agencies were not the right place to solve the pandemic, while Justice Elena Kagen (appointed by Barack Obama) and Justice Stephen G. Breyer (appointed by Bill Clinton) indicated that the employ

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