The Supreme Court finally announced its ruling on OSHA’s vaccine mandate.
It was a two-part decision. First, it allowed the enforcement of the vaccine mandate for 20 million healthcare workers. Secondly, it blocked the vaccine and testing requirement for businesses with 100 or more employees.
For employers this is good news since the first compliance deadline for the Emergency Temporary Standard (ETS) mandate was Jan. 10. And the deadline required employers with 100 or more employees to:
- have a database of their workers’ vaccination status
- post their vaccine policy
- provide paid leave to workers getting the vaccine, and
- require unvaccinated employees to wear a mask at work.
Already put in work on vaccine mandate
Now employers have more time to prepare.
However, more employers probably would have pursued the vaccine mandates if the rule was left in place, according to Willis Towers Watson’s (WTW) Fall 2021 COVID-19 Vaccination and Reopening the Workplace Survey results.
“Many employers had already put mandates in place and we believe many will continue to do so where permitted. The omicron variant has proven so contagious that it will take very high vaccination rates to quell outbreaks,” said Jeff Levin-Scherz, MD, population health leader, WTW.
“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,” he said. “Employers continue to be in the forefront of efforts to make it easy for employees to get vaccinated, including offering flexible schedules, paid time off for vaccination and recovery. Some have offered on-site vaccination.”
Court reasoning
The court said it blocked the vaccine mandate because OSHA lacked the authority to impose such a mandate. It said the law that created OSHA allowed it set workplace safety standards, not broad public health measures.
“Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the Court ruled. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”
While President Biden was happy with the healthcare ruling, he wasn’t happy with the 100 plus employer ruling. “I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,” Biden said.
DOL weighs in on Supreme Court decision
Biden isn’t the only person who isn’t happy about the decision. U.S. Secretary of Labor Marty Walsh issued a statement on the Supreme Court ruling.
“I am disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country. OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans,” stated Walsh.
“OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID-19 is without doubt such a danger. The emergency temporary standard is based on science and data that show the effectiveness of vaccines against the spread of coronavirus and the grave danger faced by unvaccinated workers. The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.
“We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.”
Keeping employees safe
Now, it’s up to states and individual employers to decide how to make their workplace safe for their employees.
Pushing for all employees to be vaccinated is one way. As is requiring unvaccinated employees to test.
And while tests have been hard to find, you may recall Biden instructed his administration to buy 500 million at-home test kits back in December. Well, today he instructed them to purchase an additional 500 million tests for the American public.
The first batch of at-home test kits won’t start being delivered until later this month. How you go about getting those tests is supposed to be revealed Friday, Jan. 14, 2022.
Medical experts have said that KN95 and N95 masks are better at protecting people against the omicron variant, than cloth or surgical masks that almost the entire U.S. population has right now. So, supplying employees with these masks is another option to protect your employees.
