SCOTUS Decision On Vaccine Mandate: How it Works

At 12 a.m. on January 13th, SCOTUS published a post that they would be live blogging as the court released opinions in one or more argued cases from the current term. Many experts quickly jumped to the conclusion that there was a high likelihood that the ruling on both the OSHA and CMS cases may be the highlight only to be very quickly disappointed. This early speculation led to a frustrating letdown today as SCOTUS did not release an opinion on the vaccine mandate.

If like many, you are watching the play-by-play in the news and just want a direct line to the ruling when it comes, here is some information, resources, and quick tips that may help you!

Decision Day

With SCOTUS decisions, it is not as simple as saying we will be able to tune in for X decision on X date. The U.S. Supreme Court does not set dates for releasing opinions but rather posts digitally to a public calendar when opinions will be released without noting what opinions will be included in that release. For example, SCOTUS updated its calendar yesterday for the remainder of January including the note that one new opinion would be released today. Of course, speculation began to fly as to whether the opinion released would be that on the OSHA/ETS cases.

SCOTUS Opinion Releases: How It Works

SCOTUS opinions are often accompanied by a public reading of at least part of the final decision read aloud by the Justice that authored the majority opinion. Opinions are often available for public consumption either via the live SCOTUS blog and/or a live stream (audio and/or video) on the SCOTUS website homepage. Opinion days are posted to the SCOTUS calendar and released at 10am EST on the posted calendar date. If you are watching the releases live there are a couple of good things to know:

  1. How do I know they have finished releasing opinions for a given day? Opinions are released with an associated number. These are the numbers that correspond to opinions in the left-most column on the court's opinion page. When the court releases multiple opinions on a single day, the R numbers don't appear until the court has released its final opinion of the day. So when an R number DOES appear (as it did for Babcock today), we can be sure the court is done for the day.
  2. Are there any exceptions? White flags of impatience were being raised across the SCOTUS blog this morning with many expecting and not getting the decision for the OSHA/CMS cases. Given that there are no additional opinion issuance dates on the SCOTUS calendar for the month of January, questions and frustrations began to fly. However, just because you don't see it on the calendar now, doesn't mean a decision is not imminent. 
    1. Opinion issuance days tend to only be scheduled a few days out. And with the opinion announcements purely electronic, we could theoretically get them even when the justices are theoretically on their winter recess -- a change from non-pandemic times.   
    2. Emergency applications are different: Rulings on the vaccine cases could technically come at any time (because they are on the emergency docket, so the court might not announce in advance when they are coming). 

Resources to Stay Up-To-Date with SCOTUS

SCOTUS Live Audio Feed

SCOTUS Official Opinions

SCOTUS Live Blog

SCOTUSBlog on Twitter

What Employers Should Do While Mandate Is In Limbo?

Make no mistake that both the OSHA ETS and the CMS Healthcare Mandate already have compliance obligations in effect, and you can’t wait until the Court decides in order to act.

While some employers are taking a more conservative approach opting to 'slow roll' plans, policies and issuance of guidance for employees, other employers are moving forward with full compliance anticipating the ETS surviving the Supreme Court. No matter which camp you are in, one of the most vital things needed is consistent and clear communications to your employees on what they can expect in the coming days and where the company stands in regard to implementation and requirements for Vax-or-Test policies.

Currently, OSHA is looking for good faith efforts that employers are beginning to take steps towards compliance with full implementation of the requirements beginning February 1, 2022. To better understand the implications of OSHA's timeline and the definition of 'good faith', please take a look at our more detailed post better outlining what employers need to know.