A requirement that large companies require weekly vaccines or tests for workers was blocked by the Supreme Court on Thursday, leaving the choice often difficult for employers.
Parts of the rule, which the Occupational Safety and Health Administration released in November, were due to go into effect Monday.
Vaccination mandates have been a controversial approach to fighting the pandemic. United Airlines and Tyson Foods are among the big companies that already have such demands, but many more are waiting for legal battles to be resolved.
Walmart, Amazon and JPMorgan Chase, three of the largest private employers in the United States, have not yet issued general requirements for their staff. A spokesperson for Macy’s, which began asking for the vaccination status of its employees this month, said the retailer was “evaluating this last-minute development.”
Some companies with vaccination mandates have said maintaining those policies may become more difficult in light of the Supreme Court’s ruling.
Franz Spielvogel, owner of Laughing Planet, a chain of fast-casual restaurants with more than 200 employees, has required its employees to be fully vaccinated or tested weekly by mid-January and does not plan to change that rule. But the Supreme Court’s decision has left him frustrated, he said, because he no longer has federal coverage to justify his policy.
“It’s becoming a bit of a headache for us,” Spielvogel said, although the recent surge in COVID-19 cases has made him feel more strongly about the need for a warrant. “As a business owner, as an employer, and as someone who deals with the public, I want my customers to know they are entering a safe place.”
In a November poll of 543 businesses by consultancy Willis Towers Watson, 57% said they needed or planned to require COVID-19 vaccinations. This included 32% who planned to mandate vaccines only if OSHA’s rule took effect, while 7% said they planned to do so regardless of the outcome. Just over 70% of the US adult population is fully immunized.
“Our recent survey suggests that many more employers would have pursued vaccination mandates had the rule remained in place,” said Dr. Jeffrey Levin-Scherz, who leads the consulting firm’s clinical response to coronavirus, in a statement. communicated.
Some companies are worried about losing employees when workers are already scarce, and while companies with mandates said those concerns have largely not materialized, a nationwide requirement could have further allayed those concerns.
The National Retail Federation, which was one of several trade groups to sue the administration for the term, called the Supreme Court action “an important victory for employers.” The organization said it “urges the Biden administration to abandon this illegal mandate and instead work with employers, employees and public health experts on practical ways to increase vaccination rates and ‘mitigate the spread of the virus in 2022’.
Companies have been preparing for the mandate for months, and many can still move forward with their policies, said Douglas Brayley, labor attorney at Ropes & Gray. He noted that the Supreme Court said nothing against employers’ vaccination mandates.
Some local and state laws still require employers to mandate vaccinations or weekly testing. New York City, for example, has a stricter rule than the federal government, requiring all on-site workers to be vaccinated. The Supreme Court has repeatedly upheld state vaccine mandates, and it has not limited the ability of employers to create their own requirements.
But other states have laws blocking mask and vaccine mandates, which federal rule would have preempted. With the Biden administration’s rule stalled, many employers in those states won’t be able to demand vaccines, said David Michaels, an epidemiologist and professor at George Washington University and a former OSHA administrator.
“This decision will be an excuse for employers who care less about their employees to get back to business as usual,” Michaels said. He added that the decision could exacerbate the divide between white-collar workers who can stay home and workers who must do business in person as COVID cases rise.
The Supreme Court’s decision, which described OSHA’s rule as “a brutal instrument,” left open the possibility that the agency could issue a revised rule targeting certain types of workplaces or more clearly falling within its purview. competence, such as requiring better ventilation and personal protective equipment, Michaels said. He could also follow a more traditional rule-making process rather than the emergency one he has used, although that could take years.
In the meantime, the court’s decision could encourage states and local governments to move forward with their own demands. This could create further complications for domestic employers.
“Local jurisdictions are going to take a closer look at OSHA’s mandate and determine whether to adopt something similar,” said Domenique Camacho Moran, labor and employment practice partner at the firm. lawyers Farrell Fritz.
United Airlines said this week that while 3,000 of its employees have COVID-19, none of its vaccinated employees are currently hospitalized. Since its vaccination policy went into effect, the airline said, its employee hospitalization rate has dropped significantly below the rate for the U.S. population.
Dr. Megan Ranney, an emergency physician and associate dean of Brown University’s School of Public Health, called the decision a “blow” to national efforts to fight the pandemic.
“There is 30% of the mobile adult population” who are unvaccinated for whom a mandate might have made a difference, she said. “Now the mandates won’t be in place, and so I’m concerned that these people won’t continue to get vaccinated – unless a very large number of employers decide it’s in their interest to put in place .”