SCOTUS vaccine mandate ruling: The industry reacts

Following the Supreme Court’s ruling striking down OSHA’s vaccine-or-test mandate for private employers (but not health care workers), many employers and their HR departments are breathing a sigh of relief. Amid all the chaos of the past several months, having to ensure compliance and track vaccination status just added to an already overburdened HR team. 

“I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,” President Biden said in a statement.

Indeed, the court’s ruling was not a critique of the value of vaccinations to prevent the spread of COVID but the government’s authority to regulate them. “That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19,” the justices wrote. ”Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments.”

Where do we go from here, and what effect will this have on employers’ vaccination policies? Experts weigh in:

Protecting workers still top priority

“Many employers had already put mandates in place, and we believe many will continue to do so where permitted. The Omicron variant has proven so contagious that it will take very high vaccination rates to quell outbreaks.

“Vaccines help employers decrease the risk of infection at the workplace and the risk of workplace disruption, as those who are fully vaccinated are not just less likely to be infected, they also don’t need to quarantine if they are exposed at work or outside of work. Employers continue to be in the forefront of efforts to make it easy for employees to get vaccinated, including offering flexible schedules, paid time off for vaccination and recovery. Some have offered on-site vaccination.

“Vaccinations are one important element of employer efforts to protect workers. Employers can also reduce risk of COVID transmission through increased ventilation, decreased worker density, and indoor masking.”

–Jeff Levin-Scherz, M.D., population health leader, WTW

Limit on OSHA, not employers

“Although the Supreme Court stayed the federal government’s OSHA rule, the ruling has no bearing on whether an individual employer can impose a vaccine mandate on its workforce. In fact, the USSC let stand a mandate for vaccination standards for health care workers. Employers shouldn’t read into the decision a lack of support for vaccines, workplace vaccine requirements, or meaningful public health measures.

“It appears to be simply the vast scope of the OSHA mandate that irritated the court’s majority – coupled with ongoing philosophical objections to federal regulation. OSHA ‘adopted a broad public health regulation—addressing a threat that is untethered, in any causal sense, from the workplace.’ The majority refused to accept the principle that the vaccine mandate was an occupational regulation within the jurisdiction of OSHA. The dissent found the mandate squarely within the jurisdiction of the statute, in a ruling with less flowery prose and more detailed statutory analysis.”

–Kathryn Bakich, health compliance practice leader and senior vice president, Segal

Gear up for regulation 2.0

“Companies should expect to see more targeted rules coming from OSHA in the near future designed to fit through this opening provided by the Court. Likely candidates for regulation include workplaces where social distancing is difficult, such as manufacturing lines, or where mask wearing is impossible, such as restaurants. In contrast, OSHA will be less likely to try to impose a vaccine mandate upon workplaces where employees are able to socially distance and wear PPE, or where work is done outdoors.

“In blocking the OSHA vaccine mandate while upholding Medicare and Medicaid vaccine mandate, the U.S. Supreme Court articulated a consistent philosophy. While a blanket Federal vaccine mandate is unconstitutional, vaccine mandates targeted at individuals and workplaces that are at particular risk from COVID-19 may be upheld.”

–Aaron Goldstein, partner, labor and employment practice, Dorsey & Whitney LLP

More fighting to come

“For employers, the effect of the January 13, 2022 decision by the U.S. Supreme Court’s ruling to block the implementation of the ETS depends, in part, on applicable state and local laws. For businesses operating in states where there are no restrictions on vaccine policies for workers, the blocking of the ETS merely means that it is the employer’s choice whether to implement such a policy.

“On the other hand, for businesses that intend to mandate vaccines in the workplace and are located in the 11 states – including Florida – which have passed laws curtailing the use of COVID-19 mandates by private employers, the decision potentially forecloses a preemption challenge between the now-struck down federal law and any contrary state laws on mandatory workplace vaccination policies.”

–Andrew Zelman, partner & attorney, Berger Singerman

‘Major setback’

“I am disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country. OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans.

“OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger. The emergency temporary standard is based on science and data that show the effectiveness of vaccines against the spread of coronavirus and the grave danger faced by unvaccinated workers. The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.

“We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.

“Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”

–U.S. Secretary of Labor Marty Walsh

Clear path for health care providers

“NHPCO has clearly supported the important role that CMS and HHS have in protecting the health and safety of consumers and health care providers. We supported and continue to support a vaccine mandate because we care about health care providers and the people and communities they serve. Today’s Supreme Court decision recognizes that role and gives health care providers the clarity that they need to assure that their staff members, and the people they care for, are fully vaccinated against COVID-19.”

–Edo Banach, president and CEO, National Hospice and Palliative Care Organization

Employer duty vs. legal duty

“My initial thoughts are that while the outcome means that if your business has 100 or more employees, you are not required to comply with the OSHA ETS (unless something changes), there remains considerations for America’s businesses on continuing to take action to prepare and support your employees during this pandemic.

“The impacts of the pandemic remain very real – from talent shortages, absence management, vaccine tracking, to safety protocols. Employees’ expectations of well-being in the workplace include understanding the actions their employer is taking to prevent the spread of Covid-19 in the workplace, and how they will be supported if they are directly impacted by the virus.”

–Alison Stevens, director of HR services, Paychex

Good vs. bad

“Now that the Supreme Court ruled in defense of the Constitution (a good thing) employers need to get ready for the political extremes that will reign down on the workplace (a bad thing). The great resignation of 2021 will be nothing compared this upcoming tussle amongst workers—surely to cause a significant drop in America’s productivity this year.”

–Stuart Robles, partner, Briggs Capital