Supreme Court to Hear NACS Vaccine Mandate Challenge

The justices will consider fast-track arguments during a special session January 7.

December 23, 2021


ALEXANDRIA, Va.—The U.S. Supreme Court yesterday issued two orders saying the justices will hear oral arguments on January 7 on two separate legal challenges brought by NACS and multiple states regarding the Occupational Safety and Health Administration’s vaccine-or-test rule for private employers.

Justice Brett Kavanaugh referred the requests for stays in the cases to the full Supreme Court, which hadn’t been scheduled to hear cases until January 10.

The OSHA rule directs employers with 100 or more workers to require vaccination against COVID-19 or weekly testing. Enforcement was set to being in early January, but OSHA said it would extend the deadline until February 9 after the 6th Circuit Court of Appeals decided that OSHA’s mandate could move forward while litigation on the ultimate question of its legality is pursued.

Following the 6th Circuit’s decision, NACS filed an appeal with the Supreme Court seeking a stay of enforcement while the litigation is ongoing. NACS is joined by about two dozen business associations in the lawsuit. In the appeal, NACS argued that the OSHA rule “will inflict irreparable harm upon hundreds of thousands of businesses across the retail, wholesale, warehousing, transportation, travel, logistics, and commercial industries that collectively employ millions of Americans.” And, in NACS’ view, the rule would amount to a “transformative” expansion of OSHA’s authority without congressional authorization.

In November, NACS filed suit to block the rule from going forward. The NACS suit, along with one filed by multiple states, was originally filed in the 5th Circuit Court of Appeals, which entered a nationwide stay of the rule while the cases were being litigated. Those lawsuits, along with ones filed in every other U.S. circuit court of appeals, were consolidated into the 6th Circuit.

On Friday, January 7, the high court will also hear arguments challenging the OSHA vaccine mandate for health-care workers at facilities that received Medicaid and Medicare funding.