Although still tied up in courts, the Biden administration’s vaccine mandate — which requires all private employers with 100 or more employees to ensure their workers are vaccinated against Covid-19 or undergo weekly testing and wear a mask at work — should stay top-of-mind for workforce managers.
The US Supreme Court on Jan. 7 heard oral arguments in two cases challenging the mandate and a ruling is expected soon. But regardless of the outcome, the dramatic increase of cases resulting from the omicron variant and the strong beliefs on both sides of the vaccination debate place new and complex burdens on employers and their staffing providers.
Supreme Focus on the Supreme Court
Two vaccine mandate cases came to the Supreme Court last month and were fast-tracked for oral argument to determine whether the mandates can remain in place while challenges to their legality continue in lower courts.
The OSHA case. The first case, National Federation of Independent Business v. Department of Labor, centers on potential overreach by the federal government in the vaccine-or-test mandate for large employers issued by the Occupational Safety and Health Administration. The mandate affects about two-thirds of US workers in the private sector.
The healthcare vaccine case. The second case, Biden v. Missouri, challenges a rule issued in November by the Department of Health and Human Services that requires all healthcare workers at facilities that participate in Medicare and Medicaid programs to be fully vaccinated against Covid-19 unless they qualify for a medical or religious exemption. The rule affects more than 10 million healthcare workers.
According to a post in SCOTUSblog  that reviewed the justices’ discussion, the court seems poised to block the vaccine-or-test policy for workplaces but may allow the vaccine mandate for healthcare workers.
“For over two hours of debate, the justices were skeptical of the administration’s attempt to impose a vaccine-or-test mandate for workers at large employers,” SCOTUSblog stated. “In the second case, which lasted for roughly an hour and a half, the justices were more receptive to the administration’s efforts to impose a vaccine mandate for healthcare workers at facilities that receive federal funding.”
Under the OSHA mandate, vaccination verification rules and indoor masking requirements for unvaccinated workers began on Jan. 10, while weekly Covid-19 testing policies for unvaccinated workers must be implemented by Feb. 9 if the rule is upheld. Additionally, the agency “will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good-faith efforts to come into compliance with the standard,” according to an OSHA update.
John Ho, labor and employment attorney and OSHA chair with Cozen O’Connor, expects the Supreme Court to issue a ruling quickly, and advises employers of both staff and continent workers to be prepared.
“If they are covered by the Emergency Temporary Standard, then they have to make some decisions as a company — and this includes for their regular employees and their staffing firm employees. What are we going to do?”
Who Is Vaccinated?
Details of the program should be ironed out as soon as possible, including rules about boosters and the logistics of any testing option offered.
“Right now, as we watch the Supreme Court, one of the biggest administrative challenges of the ETS for covered employers starts with getting the vaccination status of all your employees,” Ho says. Especially with the largest organizations, verifying and documenting this information is something they should already be doing, or at least working on.
Get your arms around who in your workforce — both staff employees and contingents — is vaccinated and who is not. That will determine how easily and how quickly you can comply with the ETS if the Supreme Court allows it to move forward. The responsibility for verifying staffing-firm workers is the responsibility of the provider and should be addressed in the contract.
“It’s the folks who aren’t [vaccinated] that you are going to have to deal with moving forward,” Ho advised. “And if you know only 5% of your workforce is not vaccinated, maybe you are not too worried about getting a policy in place quickly for weekly testing. But if you find out 60% of your workforce isn’t vaccinated and you are going to move to a weekly testing option — that’s a lot more work.”
Smaller organizations that are not covered under the federal mandate for 100-plus employees should also be considering how they are going to protect their employees.
State, Local Rules Still Apply
Keep in mind it’s not just OSHA employers have to consider — many states and local jurisdictions have their own vaccination rules.
“That’s one of the huge challenges for all employers, including staffing agencies,” Ho says. “What jurisdiction are we in? What rules do we have to follow?” For instance, New York City has its own vaccine mandate, while Florida law requires businesses with their own vaccination requirement to provide exceptions.
“It has become a very politically charged issue, so some laws push you toward vaccinations, while others push you towards exceptions,” he says.
And regardless of the size of the organization, under OSHA’s general duty clause, employers must keep their workplace safe from recognized hazards. This includes the coronavirus and OSHA provides guidance.
The way it stands as of this wrting, the OSHA ETS is in effect. And organizations must also comply with state or local mandates that exceed the ETS requirements. Alternatively, some states have limitations or prohibitions on vaccine requirements and those rules will likely be considered preempted by the OSHA ETS.
“Right now, state and local governments have been quite busy with the vaccine mandate issue, particularly in light of the uncertainty the OSHA ETS and the back-and-forth in the past couple of months” in the courts, says Michael Schmidt, labor and employment attorney with Cozen O’Connor.
States and local governments, not the federal government, are traditionally the entities that regulate health and safety issues, and they have been “very active” regarding vaccine mandates — requiring them in some instances (New York City) and prohibiting them in others (Florida). “They are going full force unless and until challenged,” Schmidt says.
Law firm Littler provides a rundown of mandatory vaccine requirements by state in a JDSupra blog post .
The Bigger Picture
Employers are naturally experiencing a mixture of anxiety and uncertainty as the new rules require changes in policies and practices nationwide for their employees, third-party vendors and customers, according to Lauren Winans, CEO and principal consultant for Next Level Benefits, an HR consulting practice.
However, Covid safety issues will remain regardless of any decision. Whether or not there is a mandate, organizations still need to find a way to manage their workforces through this pandemic and beyond.
“We have to figure out what workforce safety really is now that it’s going to be essentially redefined,” Winans says.
Irrespective of any federal requirements, consider what is the best way to manage your workforce and business in today’s environment and what that entails for Covid safety, she says. This is especially true for those with contingent workers.
“It’s a really good exercise to put your business through — whether it be leaders, HR, whoever is managing these decisions,” Winans advises. “If we have a mandate, how will we execute? And if there isn’t a mandate, how do we continue operations and still remain profitable? Going through all those scenarios would be really helpful because we don’t know what is going to happen.”
Look at the “bigger picture” and take personal beliefs and politics out of it; focus instead on what is going to provide continuity and sustained profit and revenue for your business.
“A contingent workforce is only as successful as those who want to continue to work within that construct, and if we can’t keep workplaces safe across the board, it may prevent people from being flexible and deter folks from taking on that kind of work,” says Winans.