Supreme Court Blocks Employer Vaccination Mandate

The U.S. Supreme Court Jan. 13 blocked the Biden administration from enforcing a vaccination-or-test requirement for businesses with more than 100 employees. 

The country’s highest court did, however, allow the administration to enforce a temporary vaccination mandate for healthcare workers employed by facilities that receive Medicare and Medicaid funding. 

Since the mandate was first announced last September, thousands of employers across the state scrambled to determine how to comply. 

A number of businesses found success with employee vaccinations, but others were uneasy about the risk of losing workers. 

“This is welcome news for many employers who feared that the mandate would cause some employees to leave in search of work at smaller companies, thereby exacerbating labor shortage problems,” said CBIA HR counsel Diane Mokriski. 

“However, many other employers were counting on the mandate to ‘back them up’ on their own vaccination-or-testing policies.”

Broad Mandate 

The vaccination mandate would have impacted thousands of Connecticut businesses, and roughly 84 million workers across the country. 

“Businesses need to be reassured that the control is back in their hands,” said CBIA president and CEO Chris DiPentima. 

“They know their employees, culture, customers, vaccination rates and should decide what’s right for their own, unique operation.”

“It’s important that employers understand the decision does not impact their ability to create and enforce their own policies.”

CBIA’s Diane Mokriski

Since the Biden administration first announced the vaccination mandate, numerous Connecticut businesses implemented testing or vaccination requirements for their employees.

“It’s important that employers understand that the Supreme Court’s decision to strike down the mandate does not impact an employer’s ability to voluntarily create and enforce their own policies,” said Mokriski. 

“While the court’s action prevents OSHA from requiring a vaccination policy, the fact remains that individual employers may nevertheless decide to implement one.”

Employer Rights

While CBIA does not support a broad mandate as it is restrictive to businesses, DiPentima said vaccinations are the best way to beat the pandemic and rebuild the economy. 

“We support employers continuing to educate, encourage, and incentivize people to get vaccinated,” he said. 

Supreme Court Vaccine Mandate Ruling Won't Bar Companies From Demanding Covid Shots for Workers — Biden Vows to Advocate for That https://t.co/9UNoNriffO

— NBC Connecticut (@NBCConnecticut) January 13, 2022

Many large companies, including Citigroup, General Electric, Google, JPMorgan Chase, Southwest Airlines, Tyson Foods, and United Airlines, implemented vaccination mandates for their employees well before the federal mandate’s Jan. 10 effective date. 

The Equal Employment Opportunity Commission has advised that federal law does not prevent an employer from requiring all employees who physically enter the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA.

An executive order signed by President Biden in September requiring COVID-19 vaccinations for employees of all federal contractors was temporarily blocked by a Georgia judge Dec. 7. 

OSHA’s Role 

In a 6-3 decision, the Supreme Court ruled that OSHA exceeded its power in issuing the Emergency Temporary Standard for businesses with more than 100 employees. 

“OSHA has never before imposed such a mandate. Nor has Congress,” the court wrote. 

Congress enacted the Occupational Safety and Health Act in 1970 to allow OHSA to enforce occupational safety and health standards. 

Earlier this afternoon, the U.S. Supreme Court issued a stay blocking the Occupational Health and Safety Administration (“OSHA”) from enforcing its “vaccine or test” mandate previously imposed on businesses with 100 or more employees. https://t.co/XfUNsbWXVX pic.twitter.com/SN4j4wGpaU

— Carmody Torrance Sandak & Hennessey LLP (@CarmodyTSH) January 13, 2022

Prior to the start of the pandemic, OSHA used an ETS nine times. Of those emergency rules, six were legally challenged and only one was upheld in full. 

In this case, the court concluded the mandate was a “significant encroachment into the lives—and health—of a vast number of employees.” 

The court said the act does not give OSHA the authority to address public health generally. 

‘Universal Risk’

While the Supreme Court’s majority opinion noted that COVID-19 is a risk in many workplaces, it said the virus “is not an occupational hazard in most.”

Contracting the disease, the court said, is a “universal risk,” no different from air pollution, and other communicable diseases. 

“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 opinion stated.

The court clarified it was not ruling that OSHA does not have the authority to regulate “occupation-specific risks” associated with the coronavirus.

The court did clarify that it was not ruling that OSHA does not have the authority to regulate “occupation–specific risks” associated with the coronavirus. 

U.S. Labor Secretary Marty Walsh, called the Supreme Court’s decision “disappointing,” adding the department is continuing to urge employers to put their own testing or vaccine mandates in place. 

“Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause,” Walsh said.