On November 4, 2021, President Joseph Biden announced that OSHA, the federal agency that regulates workplace safety, would issue a vaccine mandate for all private businesses with 100 or more employees. Large employers could either require:
- Employees returning to the office to show proof of vaccination.
- Unvaccinated employees to undergo weekly testing.
Legal challenges to the Biden administration’s vaccine mandate began almost immediately, with challengers claiming the mandate went beyond the power of the federal government, was overly burdensome on private businesses to administer, and violated employee privacy around health-related information.
The U.S. Supreme Court ruling
On Thursday, January 13, the U.S. Supreme Court (in a 6 to 3 decision) blocked OSHA from enforcing its vaccine mandate for large businesses.
The court majority in National Federation of Independent Business v. OSHA said that while Congress may have given OSHA the power to regulate workplace safety, it “has not given that agency the power to regulate public health more broadly.” The Supreme Court decision sent the case back to the 6th Circuit Court of Appeals for a final ruling.
The three dissenters (Justices Breyer, Sotomayor, and Kagan) argued that the majority decision “stymies the Federal Government’s ability to counter the unparalleled threat that COVID-19 poses to our nation’s workers.” The dissenters also claimed that COVID-19 is clearly a workplace safety issue, as well as a public health issue, and OSHA had solid authority to issue its vaccine mandate to facilitate workplace safety.
Response of the Biden Administration
In a statement issued immediately after the court ruling, President Biden said, “it is now up to states and individual employers to determine whether to make their workplaces as safe as possible for employees.”
U.S. Secretary of Labor Martin Walsh published a similar statement,: “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.”
Impact on employers
The Supreme Court’s decision does not prevent employers from requiring that employees be vaccinated or tested, subject to exceptions based on medical and religious accommodation. But in the absence of the OSHA vaccine mandate, which pre-empted contrary state laws, employers must now check their applicable state laws.
For example, Florida, Texas, and other states have already adopted prohibitions (or restrictions) against employer vaccine mandates. In a climate of increasing compliance complexity, employers will obviously want to discuss “specific next steps” with their lawyers and RTO team.
That said, it looks like many large businesses may discontinue their compliance with the OSHA vaccine mandate, subject to the 6th Circuit’s final ruling. Employers should maintain the vaccination records they’ve already collected until the pending legal issues have been fully resolved.
It’s also possible that some states could consider imposing vaccine mandates on businesses, especially if COVID cases rise. The result would be even more of a “patchwork response” to COVID-19 than we have already.
Impact on employee experience and hybrid work
The Supreme Court’s ruling adds more uncertainty to the #1 question employees have been asking since the pandemic began: “Is it safe for me to return to the office?” In the absence of OSHA’s vaccine mandate, that question becomes more difficult to answer.
In terms of employee experience, ongoing uncertainty and confusion are huge negatives. A segment of already-vaccinated employees, for example, might well increase their hesitancy about returning to the office in the absence of any knowledge about the vaccination status of their co-workers. They may ask, “if you don’t know, why go?”
Some employers in some states may put their vaccine mandate policies on the shelf, while other employers in other states may decide to move forward with asking returning employees about their vaccination status in order to get employees safely back into the office. One thing is certain: uncertainty will remain.
Note on the healthcare vaccine case
On the same day it issued the OSHA ruling, the U.S. Supreme Court also ruled in Biden v. Missouri, that the Biden administration could enforce a COVID-19 vaccine mandate for nearly all health care workers at facilities that participate in the Medicare and Medicaid programs. In the health care case, the court ruled that the government’s interest in, and power over, public health was broader than in the OSHA case.
Legal waiver: This post should not be construed as legal, HR, or business advice. As with all matters of a legal or human resources nature, you should consult with your legal counsel and human resources professionals about your specific situation and next steps.