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The Vaccine Mandate is Dead. Now What?

Vaccine Mandate Court DecisionAfter months of speculation and legal challenges, the federal vaccine mandate for employers who have 100 employees or more that went into effect on January 10, 2022 (the “OSHA mandate”), was blocked by the Supreme Court on January 13. The Court did, however, uphold the Centers for Medicaid and Medicare’s (CMS) vaccine mandate for employees of healthcare providers that accept Medicaid or Medicare.

What happens next?

Businesses covered by the OSHA mandate are no longer legally bound to vaccine requirements; however, there are expectations that businesses will ‘do the right thing.’

In a statement, President Joe Biden called on business leaders “to immediately join those who have already stepped up – including one-third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities.”

Reaction from Corporate America is mixed. The Wall Street Journal reports that many prominent U.S. companies already have some sort of vaccine requirement in place, and a few high-profile companies, including United Airlines, Walt Disney Co., and Tyson Foods Inc., have adopted vaccine mandates for their workers.

Other businesses are relieved that the mandate was lifted, citing operational headaches and costs, as well as the potential to lose employees. Starbucks, for one, had already readied its workforce to comply with the vaccine-or-test requirements for private businesses and has now rescinded their requirement.

Should you require vaccines?

Despite the mixed opinions on the mandate itself, business leaders largely agree that vaccines are a good thing. Vaccination increases the health and stability of the workforce, increases public confidence in your business and lowers healthcare expenditures from hospitalizations.

Scott Kirby, CEO of United Airlines Holdings Inc., went on record as saying, “Prior to our vaccine requirement, tragically, more than one United employee on average per week was dying from COVID. But we’ve now gone eight straight weeks with zero COVID-related deaths among our vaccinated employees.”

The White House has urged businesses to follow the public safety requirements stated in the mandate even if they will not be enforced. In addition, the Court stated that where COVID-19 “poses a special danger because of the particular features of an employee’s job or workplace, target regulations are plainly permissible.” 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 bottom line is that American businesses are now relieved of a legal responsibility to require and monitor their employees’ vaccination status. However, employers should consider vaccination requirements that make sense depending on the type of business they operate.

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