On January 13, the Supreme Court ruled that OSHA did not have the authority to issue the “vaccine mandate” the agency first announced in the fall. OSHA’s rule required employers with at least 100 employees to require they be vaccinated against the coronavirus (or submit to weekly COVID testing at their own expense). At the time of the Supreme Court’s decision, many larger employers had been implementing policies to meet the rule’s January deadline. Many smaller employers, too, had taken a cue from OSHA and mandated vaccines for their employees despite not being subject to the agency’s rule.
To various degrees, these employers had struggled with the rule’s requirements. During the pandemic, they had already faced labor shortages due to Covid outbreaks among employees, enhanced government assistance, lack of child care, and closed schools. As they prepared to comply, some found that OSHA’s vaccine mandate further limited their ability to recruit and retain employees by discouraging vaccine-resistant candidates. Some also found it a challenge to procure the necessary tests for those who opted out.
To be clear, the Supreme Court’s ruling does not prohibit private sector employers from mandating vaccinations for their employees. Rather, in determining that OSHA exceeded its authority with the vaccine mandate, the Supreme Court placed the choice to require vaccines or not back in the hands of private sector employers. (The OSHA order will temporarily remain in place for workers in federally funded health care facilities.) As a result, some employers will undoubtedly abandon the OSHA vaccine mandate, while others will keep their newly developed policies.
Regardless, all employers should reexamine their current Covid-19 vaccination policies and determine whether it is in the business’s best interest.
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