Supreme Court to hear arguments on OSHA ETS in special session Jan. 7

Washington — The Supreme Court will hear oral arguments for one hour on Jan. 7 on OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking, according to an order issued Dec. 22.

The special session that includes the OSHA ETS is consolidated with another lawsuit against the Centers for Medicare & Medicaid Services’ vaccination requirement for health care workers whose facilities participate in Medicare and Medicaid.

After that session, the Supreme Court will decide its next step(s) concerning the ETS lawsuit. That may include a stay of the ETS pending further action.

The 6th U.S. Circuit Court of Appeals upheld OSHA’s ETS for employers with 100 or more workers in a 2-1 decision Dec. 17 and ended a stay that was issued by the 5th Circuit on Nov. 12.

OSHA published the ETS in the Nov. 5 Federal Register, giving employers with 100-plus employees 30 days to develop, implement and enforce a mandatory COVID-19 vaccination policy – or provide a policy that gives workers the choice to get vaccinated or undergo weekly COVID-19 testing.

Covered employees had an initial deadline of Jan. 4 to become fully vaccinated, or begin weekly testing and wear a face covering while indoors or in a vehicle “with another person for work purposes.”

According to a Dec. 18 press release, OSHA won’t issue citations “for noncompliance with any requirements of the ETS” before Jan. 10 and won’t issue citations for testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Additionally, the agency will provide compliance assistance to covered employers.