December 6, 2022

Volume XII, Number 340

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December 05, 2022

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The Supreme Court has Heard Arguments on COVID-19 Vaccine Mandates. And Now, We Wait

As we teed up for our readers, the various appeals over the OSHA Emergency Temporary Standard (ETS) and the Center for Medicare & Medicaid Services (CMS) health care worker vaccination mandate were argued before the U.S. Supreme Court this past Friday, January 7, 2022.

Those who listened to the Court’s livestream heard over three hours of intense argument as to why the mandates should either be struck down or remain in effect. After the proceedings concluded, there were plenty of opinions as to the fate of the mandates. Based on the tenor of the justices’ questions, a number of pundits believe that the OSHA-ETS (for those who employ 100 or more individuals) will be struck down, while the CMS healthcare worker vaccination mandate will remain in place. And Justice Alito added another wrinkle for those reading the tea leaves to consider, asking whether the Court should issue a brief administrative stay, enjoining OSHA enforcement, while the Court decides whether or not to permanently stay the ETS.

Predictions aside, as of the time of this publication the Court has remained silent. This means that for now, OSHA’s compliance deadlines for the ETS—including the February 9th deadline to comply with the standard’s testing requirement, and today’s deadline for all other requirements (including creation of a plan, communication of the plan, and collection of vaccination data) remain in effect. Likewise, the CMS healthcare worker mandate remains in effect in 25 states, the District of Columbia, and U.S. territories until further notice.

We join our readers in anxiously awaiting further word and plan to update you as soon as we all hear from the Court.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 10
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About this Author

Larry S. Perlman, Senior Counsel, Personnel Matters Litigator, Foley Lardner
Senior Counsel

Larry S. Perlman is a senior counsel and litigation lawyer with Foley & Lardner LLP. Dr. Perlman advises clients on a wide array of personnel-related matters involving compliance with federal and state labor and employment laws. Dr. Perlman's practice also involves assisting clients with a variety of day-to-day human resource issues, such as employee discipline, employee leave, wage and hour questions, and disability accommodation. He is a member of the Labor & Employment Practice and the Automotive and Health Care Industry Teams.

305-482-8429
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