Despite Supreme Court Ruling, Many Employers Will Still Mandate Covid Vaccines

By Bruce Japsen, Contributor
Lisa Taylor receives a COVID-19 vaccination from RN Jose Muniz as she takes part in a vaccine study y at Research Centers of America on August 07, 2020 in Hollywood, Florida. (Photo by Joe Raedle/Getty Images) Getty Images

Many employers are forging ahead with requiring workers to be vaccinated even though the U.S. Supreme Court is blocking the Biden administration from enforcing a Covid-19 vaccine mandate for large employers.

The U.S. Supreme Court, by a 6-3 vote, Thursday blocked the Biden administration effort to mandate large employers vaccinate their workers. A separate 5-4 ruling from Justices is allowing requirements from employers of healthcare workers to be vaccinated because these employers such as hospitals receive federal money.

“Many employers had already put mandates in place and we believe many will continue to do so where permitted,” said Dr. Jeff Levin-Scherz, population health leader at employee benefits consultancy WTW, formerly Willis Towers Watson. “The omicron variant has proven so contagious that it will take very high vaccination rates to quell outbreaks.”

A WTW survey of more than 540 U.S. employers conducted in mid-November found that more than half, or 57%, of all respondents either “require or plan to require Covid-19 vaccinations,” the analysis showed. “That includes 18% that currently require vaccinations, 32% that plan to require vaccinations only if the Occupational Safety and Health Administration Emergency Temporary Standard (ETS) takes effect, and 7% that plan to mandate vaccinations regardless of the ETS status.”

Essentially, the employer mandate required workers to be vaccinated against Covid-19 or be tested weekly. The Biden administration issued the mandate in November through the U.S. labor department’s Occupational Safety and Health Administration (OSHA), impacting more than 80 million people.

But Justices questioned in their ruling whether OSHA had the authority from Congress to issue such requirements.

“(OSHA) claims the power to force 84 million Americans to receive a vaccine or undergo regular testing,” Justice Neil Gorsuch wrote for the majority in one part of the opinion. “By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA.”

Despite the high court’s decision, private employers can and will continue to pursue vaccine mandates, health benefits consultants say. Citigroup, for example, is set to fire workers who aren’t vaccinated by the end of the month.

“Some employers will implement mandates going forward – and they will likely tailor this geographically as there will now not be the OSHA preemption of any state laws that restrict employer vaccine mandates,” WTW’s Levin-Scherz said. “Vaccines help employers decrease the risk of infection at the workplace and the risk of workplace disruption, as those who are fully vaccinated are not just less likely to be infected, they also don't need to quarantine if they are exposed at work or outside of work.”

The Supreme Court’s ruling “has no bearing on whether an individual employer can impose a vaccine mandate on its workforce,” said Kathryn Bakich, health compliance practice Leader and senior vice president at employee benefits consulting firm Segal.

“In fact, the Supreme Court let stand a mandate for vaccination standards for health care workers,” Bakich said. “Employers shouldn't read into the decision a lack of support for vaccines, workplace vaccine requirements, or meaningful public health measures.”

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