The Biden administration's broad workplace vaccine mandate was put on hold by the U.S. Supreme Court, and legal experts say signs point to the mandate ultimately being struck down.
With the COVID-19 pandemic is still ongoing, this forces companies looking to encourage vaccination among their employees to find ways to do that themselves.
Andria Ryan, partner at Fisher Phillips, said the decision to uphold the stay on the mandate keeps the status quo for now. Companies with policies already in place requiring COVID-19 vaccinations and/or testing can keep them. Similarly, companies without those policies can implement them, but they are not required to do so.
Companies that want to encourage but not require vaccines need to decide whether they’re going to incentivize vaccination, such as giving benefits or extra days off, she said. They need to decide if they’re going to implement a healthcare surcharge for employees who are not vaccinated.
“We're back to employers trying to figure out how to do it on their own,” she said.
Even with the decision blocking the mandate, employers should stay up to date with their state and local health regulations, Ryan said. The Supreme Court decision has no bearing on state or local requirements over things such as masking.
Understanding the Decision
The Biden administration announced its workplace vaccination-or-testing mandate in September. Under the authority of an Occupational Safety and Health Administration emergency temporary standard, the rule would have forced employers of more than 100 employees to require their employees be vaccinated against COVID-19 or be tested weekly.
In a 6-3 decision yesterday, the justices kept the stay on the workplace vaccination-or-testing mandate in place, stopping it from being enforced. The decision was not a ruling on the legality of the mandate itself.
In the majority opinion, the justices wrote the OSHA rule was not an ordinary use of federal power, calling it a “significant encroachment on the lives — and health — of a vast number of employees.”
"Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA's regulatory authority without clear congressional authorization," the justices wrote.
The Supreme Court decision stops enforcement of the mandate while the Sixth Circuit Court of Appeals takes up the legal case against the OSHA ETS, Ryan said. One of the factors justices consider when determining whether to keep the stay in place is the likelihood of the success of the merits of the people challenging the rule.
Keeping the stay in place “signals to OSHA and everyone else this is not likely to survive,” she said.
The circuit court could decide that OSHA does have the authority to create and enforce this rule, but that decision would likely be appealed to the Supreme Court, where it would probably be struck down, Ryan said.
“The Supreme Court has already basically told you what they think about it,” she said.
In the majority opinion, the justices wrote that OSHA has never adopted a broad public health regulation of this kind and its authority is limited to health and safety in the workplace, but the threat of the pandemic is not limited to just the workplace, she said.
The current legal battle is over the ETS, but it only lasts for six months and is set to expire in May, Ryan said. OSHA has been working on a permanent standard, and that requires a longer process involving seeking public comment.
Given the majority opinion, OSHA’s permanent standard would be “an uphill battle,” she said. However, OSHA may have learned some things from the court’s decision and could make some changes to the rule to help it survive future scrutiny.
Industry Response
In a statement, American Hotel & Lodging Association President and CEO Chip Rogers said the safety of guests and employees is AHLA’s top priority.
“Since the onset of the pandemic, AHLA’s Safe Stay protocols have been rooted in guidance from public health officials, including CDC and OSHA. And we will continue to follow the guidance of federal health agencies,” he said. “AHLA continues to strongly urge every eligible individual to get vaccinated, so that travel can continue to resume safely and we can keep moving toward recovery. As always, our members will continue to monitor the situation and abide by all local, state and federal guidance.”
The Asian American Hotel Owners Association did not have any comment regarding the decision, referring to its “Pledge to Protect” policy and saying that the safety of guests and employees is AAHOA members’ top concern.