Vaccine Mandate Litigation Update
On Friday, January 7, 2022, the U.S. Supreme Court will hear two oral arguments on four cases challenging two regulations. One of the oral arguments will deal exclusively with the challenges to the vaccine mandate on large private employers—including restaurants—and the other on vaccine mandates on some health care facilities.
The cases impacting restaurants challenges the “emergency temporary standard” (ETS) issued by the Occupational Safety and Health Administration of the U.S. Department of Labor. The ETS would require employers with 100 employees or more to either mandate COVID-19 vaccination or have employees tested weekly. The new effective date of the regulation is Monday, January 10th. There is currently no stay in place as the Sixth Circuit lifted the stay issued earlier by another federal court. The U.S. Court of Appeals for the Sixth Circuit has been tasked with overseeing all challenges to the ETS.
While the Supreme Court could certainly rule on the constitutionality of the ETS after oral argument this Friday, and before the Monday effective date, my guess is that it will, instead, reinstate the stay and allow for the process to continue in the lower courts and leave itself open to rule on the constitutional issues at a later date.
Lately, as evidenced by several abortion law cases, the Supreme Court has shown an unwillingness to make broad rulings on constitutional issues while cases have not been fully litigated and decided by the federal courts below. The Supreme Court also does not like to issue broad rulings in a hurry. While I could be wrong, I would expect a decision on the stay to come by no later than next week—even, potentially, Friday afternoon—with more on the constitutionality at a later time.
Restaurants Prepare for Vaccine Mandates
Many operators are complying with President Biden’s vaccine mandate as well as those from numerous state and local regulators that require customers and staff to be vaccinated to serve or dine in restaurants. The Association’s food safety and policy experts created a checklist of considerations that will help navigate compliance.
