On the evening of Wednesday, December 22, 2021, the Supreme Court of the United States announced that it will hold a special session on January 7, 2022, to hear oral argument in cases concerning whether two Biden administration vaccine mandates should be stayed. One is an interim final rule promulgated by the Centers for Medicare and Medicaid Services (“CMS”); the other is an Emergency Temporary Standard (“ETS”) issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”).  The CMS interim final rule, presently stayed in 24 states, would require COVID-19 vaccination for staff employed at Medicare and Medicaid certified providers and suppliers. The OSHA ETS, which requires businesses with 100 or more employees to ensure that workers are vaccinated against the coronavirus or otherwise to undergo weekly COVID-19 testing, was allowed to take effect when a divided panel of the United States Court of Appeals for the Sixth Circuit, to which the consolidated challenges had been assigned by the Judicial Panel on Multidistrict Litigation issued a ruling, on December 17, 2021, lifting a stay that had been previously entered by the Fifth Circuit. Multiple private sector litigants and states immediately challenged the decision.

The Supreme Court rarely holds oral argument on emergency applications. Generally, they are handled “on the papers” and, more often than not, are ruled upon by a single Justice, who could refer the matter for determination by the entire Court. In the instant cases, the essential issue is whether the Executive Branch acted within the authority delegated to it by Congress. Justices across the ideological spectrum apparently are in agreement that the pandemic-related public health and safety issues are of such immediate importance that it is appropriate for the entire Court to address preliminary matters as expeditiously as possible.

The Court will address only whether the mandates should be preliminarily enjoined pending litigation and decision in the lower courts. The standard for granting preliminary relief, however, involves determining whether the parties seeking stays have demonstrated a likelihood of ultimate success on the merits. Thus, while the January 7 arguments might   trigger multiple opinions from the Court, the Justices’ decision to grant or deny stays will not be a final decision as to the lawfulness of the mandates. Nevertheless, whatever opinions are delivered might open a window into the Justices’ thinking as to the ultimate fate of the Biden mandates, which, though first to be decided upon by lower courts, likely will return to the Supreme Court.

Note that the cases before the Supreme Court do not involve individual employers’ self-imposed mandates with respect to vaccination and testing, or state and local mandates. Such mandates, which frequently are being upheld by the courts, might be affected by labor and employment discrimination laws, but they do not concern the authority of the Executive Branch to issue the vaccination mandates. That is what the stay petitions in the Supreme Court are about.

The two matters before the Supreme Court are Biden v. Missouri and Becerra v. Louisiana, challenging the CMS interim final rule, and National Federation of Independent Business v. OSHA and Ohio v. OSHA, which challenge the OSHA ETS.