President Biden’s attempt to force employers to ensure their employees were vaccinated against Covid 19 went down in flames when a 6-3 majority of Supreme Court justices said the order issued by the Occupational Safety and Health Administration under a presidential directive was not legal.
In spite of that ruling, employers need to keep in mind that many state, city and corporate vaccine mandates continue to be in effect even though it appears to be true that many of those who are fully vaccinated are the ones contracting the highly contagious but apparently milder and less deadly Omicron variant of the virus.
In addition, the laws in most states continue to allow employers to impose their own vaccine mandates for their employees, with a handful of exceptions like Tennessee and Montana. Various different types of restrictions on employer mandates also exist in the states of Texas, Florida, Utah, North Dakota, Iowa, Kansas, Arkansas, Alabama and West Virginia.
It remains to be seen how the Supreme Court’s decision will impact the federal government’s attempt to impose a vaccine mandate on all the employees of federal contractors and subcontractors, which has been by federal courts while they review its legitimacy. In late January, a federal court also blocked the Biden vax mandate for federal employees that was declared earlier.
While the Supreme Court’s decision dealt directly only with lower appeals court injunctions blocking enforcement of the OSHA emergency temporary standard (ETS) on vaccinations while they undergo court review, to do so the six majority justices had to find that those who were suing the government were likely to prevail on the merits of their case.
The Supreme Court did not literally overturn the agency’s mandate and just upheld the injunction blocking its enforcement. However, you would have to be pretty foolish or wildly optimistic about changing the justices’ minds to want to pursue the case any further in the Fifth Circuit appeals court at this point, when you know what the result inevitably will be if the lower court’s decision is appealed to the Supreme Court.
Recognizing the import behind the Supreme Court decision to allow the lower court stays to remain in place, OSHA chose on Jan. 25 to withdraw the ETS, which formally ended the six months long legal battle for good.
Some private vax requirements are being reconsidered because widespread staffing shortages plaguing employers due to the growth of a variant that doesn’t seem to respect vaccines and spreads rapidly.
Most notably, Starbucks and Nike recently chose to end their employee vaccine mandates.
Before the Supreme Court vaccine decision was issued, OSHA had announced the ending of its COVID-19 ETS applying to workers in the healthcare industry, which had been adopted last June under a separate executive order that President Biden signed on Jan. 21, 2021, the day after he was inaugurated.
Under law, any ETS order must end in six months unless renewed by OSHA, making the announcement redundant except it allowed the agency to say it will enforce the same requirements through its General Duty Clause mandate and a formal rule now under development.
In addition, the same Supreme Court did uphold a similar mandate issued by the federal Centers for Medicare and Medicaid Services (CMS) ordering 76,000 healthcare facilities require vaccinations for their more than 10.3 million workers who are paid through the Medicare and Medicaid programs.
Warehouse employers should keep in mind that they are still subject to guidances issued by OSHA and the Centers for Disease Control and Prevention (CDC), which also are enforceable under OSHA’s General Duty Clause.