The Supreme Court last week handed down a decision to block the Occupational Safety and Health Administration’s (OSHA) federal vaccine-or-test mandate for larger private employers, which would have required that workers at organizations with 100 or more employees get vaccinated or submit the negative COVID-19 test to enter the workplace. It would have also required unvaccinated employees to wear masks while indoors at work.
The ruling came just days after the mandate took effect, and four months after the Emergency Temporary Standard (ETS) was first introduced by President Biden. Had it not been blocked, the ruling would have affected about 84 million employees, more than half of the country’s labor force.
“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the court wrote in an unsigned opinion. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
President Biden called the blocked legislation a “common-sense life-saving requirement for employees at large businesses,” and urged employers to impose vaccine requirements on their own.
That means that the decision to require vaccination is now up to employers. It also means that organizations with vaccine mandates already in place may now have difficulty enforcing them.
The legal battle will continue
Following the Supreme Court’s decision, the case will now be sent to the Sixth Circuit Court, which will decide whether to permanently block or uphold the vaccine-or-test mandate.
Notably, there are two ways that the ETS could “come back to life,” wrote the law firm Fisher Philips.
“There is an unlikely chance that the Sixth Circuit Court of Appeals – which will take over the case from here – could determine that the rule is valid and breathe new life into it sometime in the coming weeks and months,” the firm wrote. “However, even if that happened, the ETS would face a steep hill to survive a challenge on the merits if the case is brought up before SCOTUS once again.”
Additionally, because the ETS was designed to be temporary and last only 6 months, OSHA could publish a formal “permanent standard” on or before May 5.
“Technically, the court didn’t kill the ETS for good, but the long-term prognosis is not looking good,” wrote law firm Fisher Phillips.
Employers will now have to consider a tangle of conflicting city and state policies when crafting their vaccination policies.
“Companies have to take it upon themselves to have safe practices in the workplace [because the federal government is not allowed to mandate it,]” Los Angeles-based employment and civil rights trial attorney V. James DeSimone told CNBC.
As of Jan. 14, eleven states have rules that prevent vaccine mandates, either by banning them entirely or requiring private employers to offer “expanded” exemption options for employees who do not want to be vaccinated.
Meanwhile, states including California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Vermont, Virginia, Washington, and Wisconsin all have vaccine mandates for state employees.
New York City’s vaccine mandate applies to all employees in the private sector.
Prior to the Supreme Court’s ruling, many large corporations including Citigroup, JPMorgan Chase, McDonald’s, and Amtrak required employees to be fully vaccinated before entering the office.
Some companies, like Amtrak, have allowed employees to submit to weekly COVID-19 testing instead of receiving a vaccination. Others, like JPMorgan Chase, have made it clear that employees who are not vaccinated will not be able to return to the office.
“To go to the office you have to be vaxxed and if you aren’t going to get vaxxed you won’t be able to work in that office,” JPMorgan Chase CEO Jamie Dimon said. “And we’re not going to pay you not to work in the office.”
Employment attorney James Reid says that it’s not unusual for private employers to deny constitutional liberties — like the right to bear arms — while at work.
“A lot of your constitutional rights don’t apply in private employment,” Reid said. “Employers are able to make any policy they want that isn’t illegal.”
That means that employers can still implement vaccination requirements as long as they provide medical, religious, or other exemptions as required by law.
Around 36% of U.S. employers say that their employer required them to be vaccinated against COVID-19, according to a December Gallup Poll.
ABOUT THE AUTHOR
Lia Tabackman is a freelance journalist, copywriter, and social media strategist based in Richmond, Virginia. Her writing has appeared in the Washington Post, CBS 6 News, the Los Angeles Times, and Arlington Magazine, among others. She writes weekly nonprofit-specific content for 501c.com.