In the continuing saga of whether the Occupational Safety and Health Administration’s (OSHA) “COVID-19 Vaccination and Testing; Emergency Temporary Standard” (ETS) is legal, the U.S. Supreme Court is set to weigh in on an expedited basis. While still waiting for the government’s response to many emergency applications asking the Court to pause the enforcement of the ETS, the Court scheduled oral argument on two applications for Jan. 7, 2022, to decide whether to stay enforcement of the ETS pending full review.

Here is the current state of play: The ETS requirements may be enforced. The Sixth Circuit vacated the stay of enforcement of the ETS issued by the Fifth Circuit because the panel determined OSHA likely acted within its authority to issue the ETS to combat the danger and emergency of COVID-19. And following the Sixth Circuit’s opinion, OSHA announced it was exercising “enforcement discretion with respect to the compliance dates of the ETS” and would “not issue citations for noncompliance with any requirements of the ETS before January 10.”  

At the same time, challengers to the ETS quickly filed emergency applications requesting a stay of the ETS requirements, and Justice Brett Kavanaugh (acting in his capacity as Circuit Justice for the Sixth Circuit) asked the government to file its response to the stay applications no later than Dec. 30. Therefore, it came as a surprise that yesterday, the Court ordered oral argument on two applications.  

Why? While the Court does not explain its reasoning, many court watchers believe the Court is reacting to criticism that it is acting on emergency applications on the so-called shadow docket without the benefit of oral argument. In fact, earlier this term, Justice Amy Coney Barrett and Justice Kavanaugh concurred in the denial of an application for injunctive relief, explaining that the question of whether to grant extraordinary relief includes a “discretionary judgment about whether the Court should grant review in the case” — and must be decided “on a short fuse without benefit of full briefing and oral argument.” By granting oral argument on the applications, the Court will allow the parties to fully brief and argue the critical question of whether the challengers are likely to prevail on the merits and have the ETS declared unlawful.   

So where does that leave employers? It remains possible that the Court will hear oral argument on Jan. 7 and quickly issue an order granting a stay of enforcement of the ETS. But until the Court acts — either after oral argument or by issuing an administrative stay — employers must prepare for enforcement of the ETS on Jan. 10, 2022.