The recent U.S. Supreme Court decision blocking COVID-19 vaccine mandates for big employers muddies the issue for businesses that their very own mandates in place or want to proceed with one.
But the ruling won't bar employers who're determined to require that their workers are vaccinated.
On Jan. 13, three days in to the Occupational Safe practices Administration's implementation of the emergency temporary standard requiring vaccinations or weekly testing for employees at companies with 100 or even more workers, the country's highest court halted the mandate, ruling 6-3 that OSHA was without the legal right to regulate public health policy, among other reasons, and sent the situation to the 6th Circuit Court of Appeals for further deliberations.
In a separate ruling, the final Court allowed the Centers for Medicare & Medicaid Services vaccine mandate to go into effect, requiring vaccinations for healthcare workers in facilities that accept Medicare and Medicaid.
Meanwhile, employers must still deal with mandates in certain jurisdictions. New York City, for example, mandates that all workers be vaccinated.
Many employers unsusceptible to the existing federal and local mandates already required vaccinations, which is within their rights as private employers, legal experts say.
“I've were built with a lot of employers – once vaccines became widely available – say, 'I am not waiting for a federal mandate, and we are going to roll this in our workforce,'” said Jim Paretti, a shareholder in the Washington office of Littler Mendelson P.C. “Broadly speaking, you didn't need the authorities to let this happen.”
Eliminating OSHA's temporary standard let most employers free with regards to the agency's “administration burden” of compliance, yet it did not change some employers' march toward mandatory vaccinations, said Chris Nickels, Milwaukee-based partner and chair from the OSHA subgroup at Quarles & Brady LLP.
“Certainly some of my clients have gone forward with mandatory vaccination policies,” he said, adding that some have been barred by state regulations. Several states – Montana and Tennessee, for example – have enacted laws banning employers from mandating COVID-19 vaccinations.
And employers must still comply with parameters set forth by the U.S. Equal Employment Opportunity Commission, which mandates that employers permit religious and health exemptions, and that they treat all workers fairly. These are among a summary of compliance problems that kept some employers on the sidelines awaiting the federal government to force the issue, worried they'd lose employees to organizations not requiring the vaccinations.
Employers poised to apply a vaccine mandate were dealt a blow when they could no longer cite federal policy, said James Hermon, a Detroit-based member within the labor and employment practice at Dykema Gossett PLLC.
“Employers that wanted to impose a vaccine mandate were looking for some cover from the federal government … and that avoids lots of conversations with employees on whether this will make sense as an employer policy. They can say, 'It's a government policy,'” he explained.
A federal mandate would have “leveled the playing field” for employers concerned that they would lose workers, Mr. Hermon said.
J.D. Piro, Norwalk, Connecticut-based senior vice president and national practice leader from the legal consulting group at Aon PLC, said the Supreme Court's decision didn't kill the problem for employers.
For now, many legal experts are advising their clients to proceed as they wish.
“This is an employer by employer decision based on their employees' needs, based on the workforce as well as their industry, and just what they have to do to retain talent,” Mr. Piro said.
