Businesses face conflicting state and local rules on vaccine mandates after SCOTUS ruling

For companies that were waiting to hear from the U.S. Supreme Court before deciding whether to require vaccinations or regular coronavirus testing for workers, the next move is up to them.

Many large corporations were silent on Thursday’s ruling by the high court to block a Biden administration requirement that workers at businesses with at least 100 employees be fully vaccinated or else test regularly for COVID-19 and wear a mask on the job. An estimated 80 million private-sector workers would have fallen under the mandate.

Target’s response was typical: The big retailer said it wanted to review the decision and “how it will impact our team and business.”

The Biden administration argues that nothing in federal law prevents private businesses from imposing their own vaccine requirements. However, companies could run into state bans on vaccine mandates in Republican-controlled states. And relatively few businesses enacted their own rules ahead of the Occupational Safety and Health Administration requirement developed late last year, raising doubt there will be a rush for them to do so now.

In legal terms, the Supreme Court’s conservative majority said the OSHA lacked authority to impose such a mandate on big companies. The court, however, let stand a vaccination requirement for most health care workers.

“Over a third of companies were waiting for OSHA’s guidance before making any definitive policy decisions on vaccines. Now that large companies are not required to get their workers vaccinated or tested, employers will have to grapple with whether and how to impose their own rules, outbreaks that lead to absences, and pushback from workers who have COVID concerns,” said Andrew Challenger, senior vice president of outplacement firm Challenger Gray & Christmas.

The National Retail Federation, the nation’s largest retail trade organization and one of the business groups that challenged the OSHA action, called the court’s decision “a significant victory for employers.” It complained that OSHA acted without first allowing public comments, although administration officials met with many business and labor groups before issuing the rule.

Chris Spear, the president of the American Trucking Associations, another of the groups that fought the OSHA rule, said it “would interfere with individuals’ private health care decisions.”

Karen Harned, an official with the National Federation of Independent Business, said that as smaller businesses employing more than 100 people try to recover from nearly two years of pandemic, “the last thing they need is a mandate that would cause more business challenges.”

A simple matter of safety for some

But mandate supporters called it a matter of safety for employees and customers.

Dan Simons, co-owner of the Founding Farmers chain of restaurants in the Washington area, said vaccine mandates are “common sense.” He requires his 1,000 employees to be fully vaccinated; those who request an exemption must wear a mask and submit weekly COVID test results.

“If your priority is the economy, or your own health, or the health of others, you would agree with my approach,” Simons said.

Administration officials believe that even though the OSHA rule has been blocked, it drove millions of people to get vaccinated in the interim. But companies that used mandates to achieve relatively high vaccination rates may decide that they have accomplished enough.

Ford Motor said it was “encouraged by the 88% of U.S. salaried employees who are already vaccinated.” The car maker said it would review the court decision to see if it needs to change a requirement that most of its U.S. salaried workers get the shots.

Many labor advocates were dismayed by the ruling.

“This decision will have no impact on most professional and white-collar workers, but it will endanger millions of frontline workers who risk their lives daily and who are least able to protect themselves,” said David Michaels, who led OSHA during the Obama administration and now teaches at George Washington University’s School of Public Health.

For their part, labor unions had been divided all along about President Biden’s attempt to create a vaccine mandate, with many nurses and teachers groups in favor, but many police and fire unions opposed. Some unions wanted the right to bargain over the issue with companies.

The United Auto Workers, which encourages workers to get vaccinated, said the decision won’t change safety protocols such as face masks, temperature checks and social distancing when possible for more than 150,000 union members working at factories owned by General Motors, Ford and Stellantis (formerly Fiat Chrysler).

The Service Employees International Union, which represents more than 2 million service industry workers, said the Supreme Court’s decision is a relief for health care workers but leaves others without critical protections.

“Essential workers further at risk”

“In blocking the vaccine-or-test rule for large employers, the court has placed millions of other essential workers further at risk, caving to corporations that are trying to rig the rules against workers permanently,” the union said.

The SEIU called on Congress and states to pass laws requiring vaccinations, masks and paid sick leave. Workers also need better access to testing and protective equipment, the union said.

The United Food and Commercial Workers International Union, the largest union for grocery workers and meatpacking plants, said the Supreme Court decision fails to recognize the “extreme health risks” America’s frontline food and retail workers face on the job.

“Frontline workers need to be protected and this decision needlessly ignores that there was a better way to address this issue without negating this mandate,” Marc Perrone, president of the UFCW International, said in a statement.

Meanwhile, employers have been split on what to do with their unvaccinated workers. Among 543 U.S. companies surveyed in November by insurance brokerage Willis Towers Watson, fewer than one in five required vaccination. Two-thirds had no plans to require the shots unless the courts upheld the OSHA requirement.

Jeff Levin-Scherz, an executive in the firm’s health practice, said most companies with mandates will keep them because they are working. He said nothing short of a mandate can get vaccination rates to 90%, and “you really need a very high level of vaccination to prevent community outbreaks.”

Citigroup staff members in the U.S. who are unvaccinated will be placed on unpaid leave, effective today, and fired at the end of the month, unless granted a medical or religious exemption, in compliance with strict company policy set in October. More than 90% of the nation’s fourth largest bank’s roughly 65,000 U.S. employees have already been vaccinated, Citi reported. 

United Airlines was one of the first major employers to announce a mandate, back in August. CEO Scott Kirby has said 99% of United employees either got vaccinated or submitted a request for exemption on medical or religious grounds.

United declined to comment Thursday, but in earlier comments Kirby has sounded committed to the mandate for his 93,000 employees because “it was the right thing to do for safety.”

Airlines fall under a separate Biden order that required federal contractors to get their workers vaccinated. That requirement was not part of Thursday’s Supreme Court ruling, but it has been tied up separately since early December, when a federal district judge in Georgia issued a preliminary injunction barring enforcement of the mandate.

Meanwhile, a record spike in COVID-19 cases due to the Omicron variant is causing a nationwide worker “sickout,” disrupting businesses ranging from grocery stores to airlines.