Employer Mandatory Vaccine Policies – In or Out?

On January 13, 2022, the U.S. Supreme Court ruled on whether the government can enforce the healthcare mandate and federal large employer vaccine mandate while challenges to their constitutionality are litigated in court. 

Specifically, the Supreme Court lifted a stay against the healthcare mandate, affecting most healthcare settings receiving Medicare or Medicaid funds, meaning that all covered employers must immediately comply with the mandate enforced by Centers for Medicare and Medicaid Services. 

Simultaneously, an injunction against the large employer mandate was stayed for employers with 100 or more employees, meaning that OSHA cannot currently enforce that federal vaccine mandate. 

Subsequently, on January 26, 2022, OSHA withdrew the significant employer emergency temporary standard but indicated that it is not removing the mandate as a proposed rule for a permanent standard.

What Will Happen Next? 

Although the Supreme Court ruled on the current enforceability of the healthcare mandate, the ongoing litigation will continue challenging its validity. Based on the Supreme Court analysis, the legal community expects the healthcare mandate to survive the challenge.

Withdrawing the large employer mandate made current litigation on it moot. However, OSHA may take note of the Supreme Court’s comments and issue a revised proposed permanent standard. We may also see some action from OSHA state-plan states who now have guidance on tailoring their own rules.

What Does This Mean for Employers? 

The large employer mandate ruling does not prohibit employers of any size from implementing their mandatory vaccine policies, consistent with federal, state, and local guidance. Employers in most states who complied with the mandate still can maintain the policies and procedures they implemented.

However, employees in states with laws contrary to the mandate should immediately revisit their policies and procedures for compliance with state and local vaccine-related restrictions. On the other hand, the healthcare mandate overrides state and local restrictions on vaccine mandates and covered employers must comply with the federal rule.

Is There a Mandatory Vaccine Policy Fallout? 

Although some large employers have had to walk back their national vaccine mandate policies to accommodate varying requirements among the states, more employers are implementing mandatory vaccine policies because of the current COVID-19 wave.

The reality for businesses is still having to manage workplace safety and minimize business disruption from absent workers, which is taking its toll. Some employers continue to delay returning employees to the workplace, having to rethink their strategy on managing onsite workers.

What Should Employers Do Now? 

Focusing on the realities of the pandemic, employers should be thinking about the safety measures that are currently needed in their workplaces. This is an ongoing evaluation as conditions shift and regulations change.

Where not otherwise mandated, employers may consider whether a vaccine mandate, mask mandates, and social distancing, among other safety measures, are appropriate. Some key points may include:

Address vaccine policies.

Whether or not employers decide to mandate vaccines, it is helpful to have a policy communicating to employees what the employer does and does not require and employee options and benefits. This allows employees to make informed decisions consistent with the employer’s workforce strategy.

Update leave policies.

Several states and localities have ongoing COVID-19 illness and/or vaccine leave requirements. The CDC also recommends that employers provide additional paid sick leave for vaccine recovery where not otherwise required. Because these rules are constantly changing, it is essential to stay informed on the latest requirements in your areas of operation.

With the ongoing COVID-19 surge, employers should also review leave policies to determine what would help keep workers safe by encouraging them to report illness or close contact and stay home (rather than come to work sick), allowing them time to get vaccinated if they choose and allowing them to care for a family member who is sick. Consistent with business needs, employers should consider whether leave will be paid, unpaid, or a combination of both.

 Evaluate safety procedures.

Because the Omicron variants are so easily spread, part of employers’ concern is helping employees feel safe amid the changing protocols. This is primarily done through evaluating safety needs in the workplace and communicating with employees what the employer is doing to support their safety.

Remember that CDC guidelines, OSHA rules, and state and federal rules are the minimum requirements employers must follow; employers can typically implement more strict safety rules to accommodate their business needs where appropriate, with limited exceptions.

Train appropriate personnel.

As rules continue to shift, employers should implement periodic training for appropriate personnel on current requirements and employer procedures to ensure compliance and consistent implementation. For example, the EEOC continues to update its “What You Should Know” guidance regarding reasonable accommodations. Employers will want to ensure staff follows appropriate protocols when addressing accommodation requests.

COVID-19 in the workplace remains fluid as governments and businesses adapt to changing circumstances during the pandemic. What was appropriate last month may need to change next month. 

Whatever the circumstances are, employers must continue to keep their duty to provide a safe workplace at the forefront of their workforce strategy.

Jamie Webb-Akasaka is theVP of Legal Counsel at OneDigital.

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