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Ruling on vaccine mandates doesn’t bar employers from proceeding

Posted On: Jan. 19, 2022 7:00 AM CST


The recent U.S. Supreme Court decision blocking COVID-19 vaccine mandates for large employers muddies the issue for businesses that have their own mandates in place or want to proceed with one.

But the ruling won’t bar employers who are determined to require that their workers are vaccinated.

On Jan. 13, three days into the Occupational Safety and Health Administration’s implementation of the emergency temporary standard requiring vaccinations or weekly testing for employees at companies with 100 or more workers, the country’s highest court halted the mandate, ruling 6-3 that OSHA did not have the authority to regulate public health policy, among other reasons, and sent the case back to the 6th Circuit Court of Appeals for further deliberations.

In a separate ruling, the Supreme Court allowed the Centers for Medicare & Medicaid Services vaccine mandate to go into effect, requiring vaccinations for health care workers in facilities that accept Medicare and Medicaid.

Meanwhile, employers must still contend with mandates in some jurisdictions. New  York City, for example, requires that all workers be vaccinated.

Many employers unaffected by the existing federal and local mandates already required vaccinations, which is within their rights as private employers, legal experts say.

“I’ve had 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 out in our workforce,’” said Jim Paretti, a shareholder in the Washington office of Littler Mendelson P.C. “Broadly speaking, you didn’t need the federal government to let this happen.”

Eliminating OSHA’s temporary standard let most employers off the hook 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 of 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 requires that employers permit religious and health exemptions, and that they treat all workers fairly. These are among a list of compliance issues that kept some employers on the sidelines waiting for the federal government to force the issue, worried they would lose employees to organizations not requiring the vaccinations.

Employers poised to implement a vaccine mandate were dealt a blow when they could no longer cite federal policy, said James Hermon, a Detroit-based member in 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 a lot of conversations with employees on whether this makes sense as an employer policy. They can say, ‘It’s a government policy,’” he said.

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 of the legal consulting group at Aon PLC, said the Supreme Court’s decision did not kill the issue 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 and their industry, and what they need to do to retain talent,” Mr. Piro said.