Court shifts vaccine choice back to employers

In the wake of the U.S. Supreme Court decision blocking the federal COVID-19 vaccine mandate for large employers, coffee giant Starbucks Corp. and apparel company Carhartt Inc. made starkly different decisions about their own workplace vaccination policies. 

Carhartt, in a memo to employees following the Jan. 13 court ruling, reiterated its requirement for vaccinations, according to an email from company CEO Mark Valade to employees, which went viral.

Conversely, Starbucks publicly stated that, based on the Supreme Court decision, it was scrapping its own vaccine mandate for its workers. 

Neither company was wrong, legally, according to legal experts’ analysis of the court decision. 

The decision blocking the Occupational Safety and Health Administration’s COVID-19 vaccine mandate for employers with 100 or more workers, however, muddied the issue for businesses that have their own mandate in place or want to proceed with one. 

In some cases, the ruling created confusion for workers and an issue for employers grappling with how to explain it, according to experts. 

“Yes, my employer can mandate it and they can also fire me. … That’s something that employees are going to have to wrap their heads around,” said Alex Maza, New York-based national management liability director Risk Strategies Co., the trading name for RSC Insurance Brokerage Inc. For employers, Mr. Maza said, the questions are: “What’s my corporate strategy? Am I going to mandate vaccinations? And, if I am, how will that affect my employee base?”

“I’ve seen the full spectrum of responses” from employers, said Todd Logsdon, Louisville, Kentucky-based partner and co-chair of Fisher Phillips LLP’s workplace safety and catastrophe practice group. “It’s all over the place,” he said, comparing employer decisions to the variety of “people’s opinions about COVID-19 and vaccinations and masks” in general. 

“It’s kind of a reflection of our country at this time,” he said.

The Supreme Court ruling doesn’t bar employers that are determined to require that their workers be vaccinated, according to analyses by comp experts. 

Instead, the court found that OSHA alone did not have the authority to regulate public health policy, among other reasons it blocked the mandate, and sent the case back to the lower court for further deliberations. On Jan. 25, OSHA withdrew its mandate, effectively killing the issue. 

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 businesses 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 James 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 emergency 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 the parameters set forth by the U.S. Equal Employment Opportunity Commission, which requires that they permit religious and health exemptions, and that they treat all workers fairly. These are among the 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 of 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, is among legal experts now 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.

 

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OSHA scrutiny expected to continue despite Supreme court decision

The elimination of a federal vaccine mandate did nothing to crush the Occupational Safety and Health Administration’s determination to investigate and fine workplaces for unsafe COVID-19 protocols, legal experts say.

With the emergence of the omicron variant, and the likelihood that more variants will appear, OSHA will continue to use its catch-all general duty clause — which requires employers to provide safe workplaces for employees — as an enforcement tool, they say.

“This decision by the Supreme Court doesn’t halt OSHA’s other COVID-19 efforts,” said Chris Nickels, Milwaukee-based partner and chair of the OSHA subgroup at Quarles & Brady LLP. “It doesn’t completely gut employers’ COVID-19 safety programs.” 

The fact that such safety requirements are in flux — changing from time to time, mostly based on shifting U.S. Centers for Disease Control and Prevention guidance — is causing some confusion for employers.

“The difficulty for employers is, how do you know you are in compliance? You can require masks, you can require social distancing (and) whether that is going to fulfill the general duty clause will depend on the investigator coming out after a complaint,” said James Hermon, a member of Dykema Gossett PLLC’s labor and employment practice in Detroit. “There are a lot of gray areas.”

Employers are also contending with COVID-19-related whistleblowing cases in which an employee contends management is not providing a safe workplace. 

Such cases have already “gone through the roof, up 50% to 100%” since the start of the pandemic, and employers should expect more, said Edward T. Ellis, Philadelphia-based shareholder and co-chair of the whistleblowing, compliance and investigations practice group for Littler Mendelson P.C.

Also, complaints regarding state-mandated worker protections will also increase, he said.