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High Court to Get Crack at Biden Shot-or-Test Rule in Early 2022

Dec. 20, 2021, 7:35 PM

The U.S. Supreme Court likely won’t decide until January whether to halt the Biden administration’s Covid-19 shot-or-test rule for large employers, leaving companies in limbo as they prepare to comply with the measure amid the spread of the highly contagious omicron variant.

The high court asked the government to respond by Dec. 30 to emergency stay requests from states with Republican attorneys general, businesses groups, conservative advocacy organizations, employers, and other opponents of the regulation.

At least eight separate petitions—addressed to Justice Brett Kavanaugh—rolled in after the U.S. Court of Appeals for the Sixth Circuit allowed the regulation to go into effect late Friday. Kavanaugh, the Trump-appointed justice who’s responsible for emergency petitions arising from the Sixth Circuit, can consider the requests on his own or refer them to the full court.

The timing of the case adds to complications for businesses that have been forced to reconsider in-person working arrangements as infections go through another surge nearly two years into the pandemic.

The Occupational Safety and Health Administration has said it will begin enforcing its emergency temporary standard on Jan. 10. The agency gave employers more time—until Feb. 9—before it will begin issuing citations for violations of the regulation’s testing requirements.

Companies should prepare as if the rule is going forward despite the possibility that the Supreme Court’s conservative majority will block it, said Jon Hyman, an attorney who counsels management at Wickens Herzer Panza.

“Employers that sit on their hands, do nothing, and hope the Supreme Court will bail them out at the eleventh hour could find themselves behind the eight-ball come January 10th,” Hyman said.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

OSHA’s emergency rule, which is set to expire in May in its current form, calls on employers with at least 100 workers to mandate that their employees get vaccinated against Covid-19 or be tested regularly. The temporary standard also requires companies to develop a vaccine policy, determine employee vaccination status, and provide leave for worker vaccination or recovery.

The agency issued the shot-or-test rule Nov. 5, but the U.S. Court of Appeals for the Fifth Circuit blocked it with a Nov. 6 order. The Sixth Circuit, which took control of the consolidated case challenging the rule after winning a multi-circuit lottery, lifted the stay. That triggered requests for the Supreme Court to put the regulation back on ice.

Emergency stay petitions in vaccine mandate cases have roundly failed thus far at the Supreme Court, with the justices rejecting requests involving shot requirements for University of Indiana students, public school employees in New York City, health care workers in New York, and health care workers in Maine.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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