WORKSPAN DAILY |
Supreme Court Blocks Biden’s Vaccine Mandate for Large Employers
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.”
About the Author
Brett
Christie is the managing editor of Workspan Daily.