The federal vaccine mandate has had its day in court. The U.S. Supreme Court has blocked the current Occupational Safety and Health Administration (OSHA) mandate for employers of 100+ workers. You can hear a collective sigh of relief from many employers due to the sheer administrative and logistical burden the vaccine mandate would have caused. But what now? Will the White House and OSHA hit back? What should you do if you want to move ahead with your own vaccine mandate? Let’s discuss.
How It Went Down
“The vaccine mandate was passed without much foresight. Who coordinates and pays for weekly testing if an employee or temporary worker isn’t vaccinated? How can you even secure enough timely tests right now to cover up to 50% of your workforce who won’t vaccinate? It would have been a logistical nightmare,” says The HT Group Founder/CEO Mark Turpin.
“We are relieved with the SCOTUS ruling,” Kelsey Erickson Streufert, chief public affairs officer for the Texas Restaurant Association, told Austin Business Journal. “The federal vaccine mandate was creating a lot of confusion and frankly, it wasn’t workable with where we are in the pandemic.”
So what made the Supreme Court stay enforcement of the OSHA vaccine-or-test mandate? This commentary by the American Hospital Association does a good job of explaining it. In short, the court felt the OSHA vaccine mandate went too far. It was “a significant encroachment into the lives—and the health—of a vast number of employees,” and it was unprecedented, “beyond the agency’s legitimate reach.” While the court saw COVID-19 as a risk in many workplaces, it is not an “occupational hazard in most,” which OSHA is limited in regulating.
Under that same reasoning, SCOTUS ruled that the Centers for Medicare & Medicaid Services vaccine mandate for health care workers is legitimate. Why? Because there’s reason and presidency for CMS to protect Medicare and Medicaid patients in that manner.
Will The White House Fight Back?
Is that the end of an OSHA vaccine mandate? It’s not likely. The issue is being kicked back to the court of appeals (so is the CMS ruling, by the way), and, after that, it’s back to the drawing board. SCOTUS stated that a “more-limited vaccine-or-test mandate might pass muster,” AHA reports. “OSHA, for instance, can ‘regulate risks associated with working in particularly crowded or cramped environments.’ What OSHA cannot regulate, the court held, is ‘the everyday risk of contracting COVID-19 that all face.’”
The White House has conceded, though, stating that it’s up to states and individual employers now to place requirements on employees. That’s more difficult for employers in Texas. Governor Abbott’s executive order precludes an employer from “compel[ling] receipt of a COVID-19 vaccine” if that person “objects to such vaccination for any reason of personal conscience.”
There’s even a hotline through the Texas Workforce Commission (TWC) for tips about employer-enforced workplace vaccine mandates across the state. The TWC has warned employers that vaccines should not be mandated “without notifying the employee of the necessary exemptions and processing those exemptions in good faith.” In other areas where vaccines are federally mandated, Texas has lawsuits pending. These include mandates for federal contractors, healthcare workers, and members of the National Guard.
But OSHA may still take action under existing law, even if no mandate can be enforced. “OSHA’s General Duty clause requires that all employers provide a work environment ‘free from recognized hazards that are causing or are likely to cause death or serious physical harm,’” commented Amy Beckstead, employment attorney at Beckstead Terry PLLC. “This provision continues to apply regardless of the Supreme Court’s recent decision – and OSHA has reminded employers of their duties under the General Duty clause with respect to COVID-19 following its loss at the Supreme Court.”
Where Do We Go From Here?
Austin Business Journal recently asked legal experts about what employers should do if they choose to move forward with their own vaccinate-or-test mandates. Their advice echoes what we’ve written before with Beckstead’s guidance. In short, you can voluntarily require vaccinations, but there are many traps for the unwary, especially in Texas.
Some updated questions to ask yourself:
- Are you willing to follow through with the “punishment” – Will you fire even top talent who don’t comply?
- What’s your plan to address the exemption requests by employees?
- How will you legally and logistically track vaccine status, and how will you coordinate and pay for testing for those who aren’t vaccinated (if you opt to test)?
- Have you thought through how a vaccine mandate could affect recruiting and retention?
- Have you considered the logistics and expense of including temporary and contract workers in such a mandate?
“You should address these important questions with your employment attorney, staffing firm, and other affected parties before you mandate,” says Turpin. “Consider alternatives like incentives and onsite vaccine and testing clinics before you decide. These strategies work, and they don’t alienate workers who can’t or won’t vaccinate.”
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