Supreme Court blocks Biden COVID mandate requiring vaccine, testing at work. Here’s what we know. – USA TODAY

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Supreme Court halts Biden’s COVID-19 mandates for large employers

The Supreme Court struck down Biden’s vaccine-or-testing mandate for large employers. A second ruling allowed to stand a mandate covering facilities paid by Medicare and Medicaid.

Staff Video, USA TODAY

Workplaces with more than 100 employees will not have to comply with a federal requirement that workers get COVID-19 vaccinations or be tested weekly and wear masks.

That’s because the Supreme Court Thursday halted the Biden administration’s enforcement of the mandate, which would have taken effect Feb. 9 and covered two-thirds of the nation’s private workforce, an estimated 84 million employees.

The decision was not unexpected as federal courts have supported state and local governments’ power to regulate public health, but not so with the federal government.

“The Supreme Court ruling was not about the mandate itself, but whether the federal government has authority to impose the mandate,” said Sydney Heimbrock, chief industry advisory for government at Qualtrics, an employee experience software company.

►Supreme Court: Court blocks COVID vaccine-or-testing mandate for workplaces but lets medical rule stand

►COVID Lockdown: State-by-state regulations

What did Biden’s COVID mandate require? 

In November, President Joe Biden announced a policy under the Department of Labor’s Occupational Safety and Health Administration that would require workers at businesses with more than 100 employees be vaccinated or, for those not vaccinated, be tested weekly. Unvaccinated workers would also be required to wear masks. Employers that failed to do so would have faced penalties of nearly $14,000 per violation.

Where does the Supreme Court ruling leave employers?

Employers will be able to make their own decisions about how to keep employees safe, Heimbrock said. “This ruling doesn’t change the fact that employers are able to make the right decision for their workforce,” she said.

“Employers are increasingly playing a critical role in the physical health as well as mental and emotional stability of employees and their communities,” Heimbrock said. “Companies need to carefully consider the most effective ways to keep their employees safe, whether that is work-from-home policies or vaccination mandates, or any number of other strategies.”

But the lack of a federal mandate does put an onus on employers, said Columbia Business School professor and corporate strategy expert Rita McGrath. “With a federal mandate they could easily use the ‘it’s the law, folks’ for both customers and employees who dislike the idea of vaccine mandates,” she said. “Now, they have to create a policy – whether for or against – on their own and it can be polarizing.”

The court’s decision on the federal mandate could spur action by many companies. A Society for Human Resource Management survey done in mid-December found that more than half (51%) of the employers that would have been subject to the mandate were waiting to see how the legal challenge would unfold before deciding on a vaccination policy, said Emily Dickens, SHRM’s chief of staff and head of government affairs.

The mandate would have affected companies with 100 or more employees, she said. But a vaccination and testing plan means more work for a small or mid-sized company with a leaner HR staff than a company with 1,000 or more employees.

“I would say it’s a recognition that employers now have the opportunity to do what works for their organization,” Dickens said.

Is the Supreme Court decision good or bad for employers?

That depends on the employer, said Jim Paretti, a shareholder and labor relations attorney with Littler, the largest global employment and labor law practice representing management.

Can employers require COVID vaccines?

Employers who want to mandate vaccinations, “they’re still able to do so,” Paretti said. They may need to follow exemptions to COVID-19 vaccinations for workers implemented by some states.

And those companies potentially faced with having to get a lot of employees vaccinated or tested regularly under a federal mandate, “are probably pretty pleased to know that OK, we don’t now have the threat of (OSHA) breathing down our neck with potentially six, seven-figure fines,” Paretti said.

One manufacturing company had told Littler that it would cost about $7 million over the rest of 2022 if a federal mandate had been instituted.

What should employees think?

The court’s decision could create “the potential for far more tension in the workplace,” McGrath said. “People will say they don’t want to come in and risk exposure to unvaccinated colleagues, or that they don’t feel safe (and) unvaccinated people whose employers do require a mandate are going to say they are being treated unfairly… It’s just a mess.”

Workplace mandates make it easier for employees, McGrath said, because “it kind of lets you off the decision-making hook. I think employees are going to be looking to their corporate leadership to make a choice which puts executives in a tough spot.”

Vaccinations are required at Columbia University and, McGrath said, that “helps everybody feel a lot safer and has opened the door to our teaching ‘live’ again. I speak to colleagues at universities that have not taken a stand and frankly, a lot of them are extremely anxious about being in classrooms for extended periods with unvaccinated young people who we all know are not great a social distancing.  Some are flatly refusing to teach in person and that creates its own issues … and on and on.”

McGrath also foresees unintended consequences from the court decision. The Biden administration said OSHA had the power to enforce a mandate because COVID created a hazardous workplace. If it can be argued that the court determined that the coronavirus does not, “there is very little redress for employees put in a situation where they are exposed and suffer ill effects,” she said.

Will no COVID vaccine mandate make it easier to hire folks?

That depends, Heimbrock said.

“In this country, we are lucky to have a diverse workforce with varying opinions,” she said. “No leader can control an unpredictable pandemic, but they can control fostering an environment of empathy and understanding for their current and future employees.

There’s no question many companies face a talent gap and a shortage of workers. “It’s been really hard to backfill those positions with this uncertainty,” Dickens said.

“If you are an employer that is not requiring vaccinations or regular testing, I think it will allow them now to consider a pool of people that they may have been reluctant to consider because the possibility of the mandate was hanging over their head,” Dickens said.

Are there any legal remedies for workers without the vaccine mandate in place?

Laura Mitchell, a lawyer at Jackson Lewis, told USA TODAY that the Supreme Court’s ruling is a preliminary decision.

“The Sixth Circuit will still need to decide the ultimate fate of the law. Additionally, employers who choose to maintain workplace vaccination policies must still follow other applicable laws, such as Title VII and the Americans with Disabilities Act, and be cognizant of the requirements,” Mitchell said.

Could employers be held liable or be sued by employees for not keeping them safe?

Maybe. “But (employees) would have to meet the applicable standard to show liability and that would vary depending on state and or federal law,” Mitchell said. “For example, is the employer completely disregarding the (Centers for Disease Control and Prevention) recommendations or are they complying with the recommendations (which do not require vaccines). If they are following CDC recommendations it seems like it would be hard for an employee to say the company was negligent in some way. It would be very fact-specific and vary by situation.”

How will companies that have employees in multiple states navigate varying state rules?

These companies will have more factors to weigh, Mitchell said. 

“Companies could take a state-by-state compliance approach or, for ease of administration, they could develop a policy that would be compliant in all jurisdictions in which they operate, even if that meant the policy was ‘more inclusive’ than needed in some places,” Mitchell said. “Employees in some locations may be more accepting of a more rigorous policy than employees in another state so the company would need to decide if they want a state-by-state approach to address the differing employee perspective or if they want a blanket company-wide policy.”

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