The Supreme Court blocked the Biden administration’s federal vaccine mandate Thursday, which would have required workers at large private companies be vaccinated against Covid-19 or be regularly tested for the virus.
The decision, which impacts employers with 100 or more employees, comes days after the Occupational Safety and Health Administration’s emergency measure started to take effect Monday.
Separately, the Supreme Court upheld a vaccine requirement for medical facilities that take Medicare or Medicaid payments.
Employers are taking this as “welcome news” to not have the “significant burden” to roll out a vaccine mandate or create a testing policy during nationwide shortages of tests, says Domenique Camacho Moran, an employment lawyer in New York.
The OSHA rule also required employers to provide paid time off for workers to get the shot, collect employee records of vaccination status, test unvaccinated workers for Covid-19 at least weekly and require unvaccinated workers wear a face covering in indoor workplaces.
The news won’t change much for workers, says Jason Reisman, a labor attorney in Philadelphia.
Workers who choose not to be vaccinated will likely not see a requirement from their employer if it was waiting for the outcome of the ruling. Those with religious or medical exemptions will remain exempt.
“The impact on people who are vaccinated is that there will just continue to be unvaccinated people around you,” Reisman says.
Though the federal requirement is on hold, states, cities and employers can adopt their own vaccine or testing requirements.
Ultimately, “We can expect to see a fractioning of responses in the workplace,” says Boston employment lawyer Walter Foster. “Some companies will continue to enact vaccine mandates because their city, like New York, has a mandate, or just because that’s what they want to do. But the bulk of companies’ reactions will see this news as ‘Great, we don’t need to enact a vaccine mandate anymore.'”
According to a November Willis Towers Watson survey of 543 employers, 57% of all organizations said they either require or plan to require vaccinations, and another 32% would do so if the OSHA emergency safety measure takes effect.
A December survey of 1,017 workers from the National Safety Council found an employer requirement led to a 20% increase in worker vaccination rates: 95% of workers with an employer requirement were vaccinated and 75% of workers without a requirement were vaccinated.
Camacho Moran says many employer measures adopted in late 2021 are being reevaluated in the face of the omicron variant, which has caused a number of breakthrough infections. “We know vaccination isn’t always preventing transmission,” she says. “So for employers focused on a vaccine mandate last summer, they’re now thinking about how to best protect workplaces. They’re finding vaccination alone isn’t the answer to that question.”
Employers may turn greater attention toward frequent testing, indoor masking and encouraging people to stay home while sick.
Thursday’s decision doesn’t fully resolve whether the OSHA rule can go into place, Reisman adds. The rule now goes back to the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, which said the federal vaccine mandate appeared to be lawful. The decision will likely go back to the Supreme Court in the next few months.
“This battle will continue,” he says.
Morgan Smith contributed to the reporting of this story.
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