Supreme Court To Hear Vaccine Mandate Case Jan. 7th


Jay Sekulow


December 27, 2021

We are fighting at the Supreme Court against President Biden’s federal vaccine mandate. The Supreme Court has announced it will hear oral arguments on January 7th. The mandate that the Occupational Safety and Health Administration (OSHA) put forward to go into effect on January 4, 2022, requires employers of 100 or more employees to implement a mandatory vaccination policy for all employees with limited exceptions.

We filed an Emergency Application for Stay of Agency Action Pending Judicial Review and Petition for a Writ of Certiorari Before Judgment on behalf of The Heritage Foundation over this federal power grab. The Supreme Court agreed to hear the case, but the law will still go into place on January 4th. The government has until December 30th to respond to our applications. And we will be filing a brief that is due on January 3rd.

ACLJ Senior Litigation Counsel Abby Southerland explained what we’ve asked for: 

We have asked the Court first for an application for stay, to go ahead and issue an emergency stay that is in line with the first action taken in this case by the Fifth Circuit which was to issue the stay. Which was then undone by the Sixth Circuit. Then, a Petition for Certiorari would ask the Court to review the merits of the case.

OSHA issued a statement to inform employers what to do in the interim:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for non-compliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

What exactly does “exercising a reasonable, good-faith effort” mean? ACLJ Director of Policy Harry Hutchison explained what this would entail: 

Reasonable good faith compliance will be a function of I think existing practice and existing law and I don’t know the specifics of what that really means, but certainly, it does mean that the employer does have to begin an affirmative effort to achieve compliance in early January. They have to incur the costs and they also have to incur the legal costs in terms of specifying to their employees. Keep in mind if you have 100,000 employees, you will have to communicate with all of them in order to avoid these penalties down the road.

Abby also explained the path this mandate will have in Court:

Employers have to begin all of the work necessary to comply with OSHA before the Supreme Court will even hear argument in this case. Then, as you know, we have to wait for a decision after oral argument.

And it’s only a decision on the stay – if it is granted it goes back to the courts to determine the case on its merits. Employers will have to begin developing policies aimed at complying with the mandate. We’re preparing our next round of arguments and we will be updating you on this critical case as it heads to the Supreme Court.

Today’s full Sekulow broadcast is complete with even more analysis of President Biden’s vaccine mandate at the Supreme Court.

Watch the full broadcast below.

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