Supreme Court Blocks Biden’s Vaccine Mandate for Large Employers
Workspan Daily
January 13, 2022

The U.S. Supreme Court issued a stay on the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccination emergency temporary standard (ETS) on Thursday.

The vote was 6 to 3, with liberal justices in dissent. The Biden administration’s mandate, which was being enforced by OSHA, would have required private employers with more than 100 employees to ensure that their workforce was vaccinated or tested weekly for COVID-19 as part of the ETS issued on Nov. 4.

The ETS was in accordance with the Biden administration’s vaccine directive issued in September that was aimed at covering 80 million private-sector workers. Businesses that didn’t comply by the original Jan. 4 deadline would have faced fines of up to $13,600 per violation.

“The Supreme Court’s decision on the ETS comes as a massive sigh of relief for businesses already saddled with the difficult task of addressing COVID-19 risks in the workplace,” said Jackie Gessner, an employment counseling and litigation attorney at Barnes & Thornburg. 

“Businesses were struggling with how to handle large numbers of exemption requests and the seemingly impossible task of administering weekly tests, especially given the test supply shortage. This decision returns the decision-making power to individual businesses, often more equipped to identify the best safety solutions for their workforce.”

A U.S. federal appeals court originally issued a stay on Nov. 6 that froze the Biden administration’s vaccine mandate, citing “grave statutory and constitutional” issues with the rule, which sent it to the Supreme Court for review.

The court also ruled on a separate mandate case that required healthcare workers at facilities receiving federal money to be vaccinated. The vote in the healthcare case was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joining the liberal justices to form a majority allowing for the modest mandate to remain in place.

OSHA’s ETS would have required private employers to provide up to four hours of paid time and reasonable paid sick leave needed to support vaccination. Organizations also were instructed to require each vaccinated worker to provide proof of vaccination status, according to the ETS.

Given the ongoing tight labor market, there was concern among private employers that implementing vaccine or testing mandates on employees might lead to additional turnover. A WorldatWork pulse survey in October found that more than 85% of 238 employers saying they were at least somewhat concerned about losing employees over the mandate, with 14% indicating they were “extremely concerned.”

The survey additionally found that 27% planned to terminate employees who refused to comply with the mandate. Additionally, 62% said they had not made a decision yet as to whether they would fire an employee who didn’t comply.

While the Supreme Court’s decision is welcome news for many private employers, others had already implemented their own measures, noted Jeff Levin-Scherz, M.D., population health leader at Willis Towers Watson.

“Many employers had already put mandates in place, and we believe many will continue to do so where permitted,” Levin-Scherz said. “The Omicron variant has proven so contagious that it will take very high vaccination rates to quell outbreaks.”

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