The U.S. Supreme Court’s rejection of a major part of the Biden administration’s plan to boost the vaccination of workers against COVID-19 means many large employers can stand down on their plans to comply with a rule requiring the shots or testing, but they are free to institute their own mandates as long as such efforts don’t violate state and local laws.
Also, the Court’s 6-3 decision announced January 13 doesn’t interfere with laws local jurisdictions may enact and doesn’t rule out future federal measures that fall within limits acceptable to the justices.
In a 5-4 decision also announced on January 13, the Court let stand a rule requiring vaccination for many healthcare workers.
What are employers to do in light of the Court’s actions? Stay up to date on the latest health and safety guidance as well as state and local legal requirements, according to attorneys who advise employers on the shifting pandemic landscape.
The Court struck down an emergency temporary standard (ETS) issued by the U.S. Occupational Safety and Health Administration (OSHA) in November. It would have obligated employers with at least 100 employees to require employees to be vaccinated or submit to weekly testing. It allowed for exceptions for employees with medical or religious objections.
Many employers were waiting to be compelled to take steps against COVID-19, and “now that compulsion is removed,” Burton J. Fishman, an attorney with FortneyScott in Washington, D.C., says, pointing out many local jurisdictions have laws and regulations, including vaccine, testing, and masking mandates, and more are doing so because of the omicron outbreak.
“The Court’s decision makes it clear that state and local laws and regulations are valid and will be approved,” Fishman says. “Same is true for state laws banning vaccinations or testing or masking in response to the pandemic.”
Fishman also notes the Court’s decision doesn’t shut down further action OSHA may be working on, such as a rule that would be permanent instead of the temporary rule it released in November.
“The Court noted that more narrowly tailored rules affecting particular industries have a good chance of being approved,” Fishman says, but a concurring opinion by Justice Neil M. Gorsuch “lays out the argument for close scrutiny of any regulatory action.”
Kara E. Shea, an attorney with Butler Snow LLP in Nashville, Tennessee, says employers “absolutely must check the current laws in every location where they have employees.”
The Court’s issue with the OSHA rule “was overreach by the federal government and, particularly, by an agency, rather than by elected representatives,” Shea says. “Conversely, however, state and local authorities may enact laws limiting or prohibiting these kinds of mandates. Employers who want to enact their own vaccine, testing, and masking requirements should make sure they are not restricted from doing so by state and local laws.”
Shea advises employers to “monitor the public health situations in their locations and take into account the unique nature of their worksites and workforce in assessing what will work best to keep their workplaces as safe as possible.”
“One size may not necessarily fit all,” Shea says. “Also, employers need to be flexible as the situation is fluid. Different measures may be needed during surges, as opposed to periods when COVID-19 case rates are low.”
Fight not over
Jodi R. Bohr, an attorney with Tiffany & Bosco P.A. in Phoenix, Arizona, says the fight for a vaccine mandate is not over. OSHA’s temporary standard was an emergency order expiring six months from the time it was issued in November, “so OSHA has four months to either replace it with a permanent standard or let it lapse,” she says. “As we have seen during the last 20 months of the pandemic, a lot can happen in four months.”
Bohr also points out the Court’s decision means “employers may be required to claw back policies” requiring vaccination they implemented in states that have passed measures against vaccine mandates. “In states where no countermeasures were issued, employers may continue enforcing vaccine mandate policies, so long as they consider requests for disability or religious accommodations.”
Although the Court has spoken, “employers shouldn’t exhale their collective sigh of relief just yet,” Bohr says. “OSHA issued a statement that ‘[it] will be evaluating all options to ensure workers are protected from this deadly virus.’ OSHA may consider other avenues in an attempt to pass another vaccine mandate, although that does not appear to be likely.”
Mark I. Schickman, with Schickman Law in Berkeley, California, also says the decision doesn’t interfere with an employer’s decision to require vaccination, testing, or masking except in states that prohibit such mandates. “This gets rid of the mandate to vaccinate, not the choice,” he says.
An employer’s decision to adopt such a policy may reduce illness and absenteeism and, as Justice Elena Kagan noted from the bench, may encourage employees to return to the workplace, Schickman says.
Healthcare employer rule
The Court’s decision to allow a rule from the U.S. Centers for Medicare and Medicaid Services (CMS) means affected healthcare employers that accept Medicare and Medicaid need to have their employees vaccinated unless they qualify for a medical or religious exemption. The CMS rule doesn’t allow a testing alternative.
Covered healthcare employees need to have at least one shot by January 27, and those taking a two-shot series need to have the second injection by February 28. Bohr says the CMS has said it will provide 30-day and 60-day grace periods to providers that have 80% compliance from staff by the first deadline.
Schickman points out four justices opposed the CMS rule, but Chief Justice John Roberts and Justice Brett M. Kavanaugh voted with the majority to support the measure. “Unlike the OSHA rule, which the Court found to have no statutory support or precedent, CMS has a lot of precedent regulating medical institutions and procedures,” he says.
Shea says healthcare employers “need to make sure they have clarity on whether they are covered by the CMS rule and, if so, the requirements of the CMS rule.” They also need to watch for more guidance from the agency.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.