On January 7, the U.S. Supreme Court will hear oral arguments pursuant to emergency requests in two cases concerning COVID-19 mandates. One case involves a challenge by a coalition of interest groups and states opposed to the Occupational Safety and Health Administration’s mandate, which requires employees of businesses with 100 or more employees to receive at least one dose of the COVID-19 vaccine or produce weekly negative test results based on approved COVID-19 testing methods. The appeal stems from the Sixth Circuit Court of Appeals’ recent reversal of a lower federal court’s injunction that blocked the mandate from going into effect. Significantly, the OSHA mandate does not require employers to cover the cost of testing for unvaccinated workers. As discussed here, the OSHA mandate is already in effect in many states, including New York.

The other case concerns the Centers for Medicare & Medicaid Services’ mandate, which conditions federal funding for facilities participating in the Medicare or Medicaid programs on such facilities requiring all healthcare employees to receive the COVID-19 vaccine. The federal government is challenging two federal court rulings from Missouri and Louisiana that have blocked the CMS mandate from going into effect in the 24 states that joined the lawsuits.

In both cases, opponents of the mandates contend that OSHA and CMS have exceeded their authority, claiming that such mandates constitute “decisions of vast economic and political significance” that can only be validly promulgated by a federal agency if Congress provides a “clear statement” that it wishes to assign such decision-making authority to an agency.

The Supreme Court’s decision is poised to set significant precedent concerning the powers of the president and federal agencies, and may also have potentially wide-reaching implications for businesses in an already strained labor market. Should the Court side with the government, Medicare and Medicaid providers, and employers with 100 or more employees, could see yet another mass exodus of employees who don’t wish to comply with the mandates in an employment climate that has already been called the “great resignation.”

Businesses and legal professionals will be closely monitoring Friday’s oral arguments and subsequent rulings. In the meantime, employers subject to these mandates should continue preparations for compliance because if the Court sides with the government, it is unclear how aggressively OSHA and CMS will enforce the mandates.

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