In a 6-to-3 vote, the U.S. Supreme Court on Thursday restricted President Biden’s federal immunization mandate, requiring employers with 100 or more employees to require the Covid-19 vaccination or submit to weekly tests. In a per curium decision, which means that the author of the decision is not named, the Court remitted the case to the lower courts for a decision on the merits but effectively killed her.
The disputed mandate, dubbed Vaccination and Testing Emergency Temporary Standard, went into effect Monday, but has been widely criticized, including by members of the business community. the The National Federation of Independent Businesses, a small business trading group, is the main plaintiff in the lawsuit, which the High Court ruled against the Occupational Safety and Health Administration, the federal agency responsible for administering the warrants.
The Supreme Court ruled that OSHA had overstepped its bounds, writing that requiring “84 million Americans either to get a Covid-19 vaccine or to undergo weekly medical tests at their own expense … is not a daily exercise of federal powers ”.
Use lawyer and partner at Wickers Herzer Panza, Jon Hyman adds that the Supreme Court ruling also overturns other ETS requirements, which include face covers for the unvaccinated and the removal of Covid-positive employees from the workplace.
While you probably still have questions about what to do about all of this, here are a few answers:
Can you still require vaccinations and a mask?
The short answer is, it depends on the law in your state. Catherine Barbieri, co-chair of the labor and employment department at Fox Rothschild LLP, explains that “Except for state or local prohibitions on vaccine mandates or testing requirements, employers who wish to require their unvaccinated employees to be vaccinated or tested for COVID-19 will have to institute their policies without being able to point to a federal requirement. “
You still have an obligation to ensure the safety of your employees, even if OSHA did not have the power to require tests, vaccines and masks. As long as the law in your state allows, the decision is up to you.
Like Texas and Florida, some states have laws limiting the preventative measures businesses can take, while states like Oregon still require masking inside. Check with your local labor attorney.
You have to make your own decisions.
While it’s certainly easier to tell your employees that your hands are tied when it comes to an unpopular decision, now it’s up to you. Labor attorney and partner at Shipman and Goodman, LLP, Dan Schwartz, warns that now is your decision, and there are good reasons to think about warrants.
Employers still have wide discretion here to implement such a rule (subject to considering exemptions for medical and religious reasons). Ultimately, I think many employers will still consider doing this, in order to reduce long absences and minimize disruption in the workplace.
But employers won’t be able to use OSHA ETS as an “excuse” or a reason to do so.
You still need a Covid plan.
One of the ETS’s requirements was a Covid-19 security plan. You don’t have to do weekly tests for your unvaccinated employees or ask them to wear masks, but you do need to have a safety plan in place for your employees. It should be updated to reflect current best practices for keeping your employees safe.
This decision applies to private non-healthcare companies
OSHA ETS applied to entities not covered by Medicare with 100 or more employees. For hospitals, nursing homes and other businesses covered by Medicare, Supreme Court upheld this mandate in Joseph R. Biden, Jr., President of the United States, et al., v. Missouri et al. in a 5-4 decision.
Federal contractors and employees are also subject to different rules, which have not been thoroughly tested at the Supreme Court level. If your business falls under these rules, rather than OSHA rules, then you should follow the testing, vaccination, and masking policies mandated by these rules.