Employers are on their own after court guts Biden vaccine-or-testing mandate

With the U.S. Supreme Court blocking the Biden administration’s vaccine mandate for private companies, employers now face a patchwork of state rules on COVID-19 workplace safety.

Different, and sometimes confusing, vaccine rules now apply across the economy based on the city, sector, funding source, and corporate policy.

“There isn’t a right answer for employers at this point,” said Shannon Farmer, an attorney at Ballard Spahr in Philadelphia.

She said the U.S. Supreme Court’s action on Thursday to freeze the Occupational Safety and Health Administration’s vaccine-or-test mandates, could pit a company’s human relations staffers who want to protect the health of employees against operating executives who worry how internal vaccine mandates could cause employees to quit.

John S. Ho, co-chair of OSHA-Workplace Safety Practice at Cozen O’Connor, said that companies can “essentially ignore” the Biden vaccine mandate, though the issue will be litigated in the lower federal courts. “It’s not over yet but employers don’t have to worry about it. So folks are left with different state and city rules.”

On Friday, Mayor Jim Kenney’s administration set a Jan. 24 date for implementing a vaccination mandate for city workers after reaching a deal with one of the city’s unions. The city has 22,000 unionized employees and they will be required to show proof of vaccination or obtain an exemption for religious or medical reasons.

Some Philly-area employers, such as Amtrak, and WSFS Bank, the largest bank based in the Philadelphia area, had already implemented vaccine-or-testing rules similar to the OSHA standard that the court has now suspended.

National employers including American Express, BlackRock, General Electric, Google, MGM International, Comcast’s NBC Universal, and Southwest Airlines are requiring vaccines for workers at their locations, according to a list compiled by NBC News.

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CVS and McDonald’s are requiring higher-paid office and professional staff, but not hourly-paid retail workers, to get the shots.

American Airlines, one of the largest private employers in Philadelphia, said on Friday that it was subject to a totally different mandate, one for federal contractors.

“We shared last week that more than 96% of our team members have submitted proof of vaccination or a request for an accommodation. This is great news, and we continue to see submissions every day,” a spokesperson said in an email on Friday.

But Farmer, the Ballard Spahr attorney, said that in a separate and earlier decision the courts had stayed, or frozen, the mandates for federal contractors as it did on Thursday for the OSHA vaccine mandate.

In its ruling, the Supreme Court said that the Biden administration and OSHA had exceeded their authority, in an attempt “to regulate public health more broadly” than Congress had authorized.

The justices, however, let stand a separate vaccine mandate covering 10 million health-care workers who treat patients in the federally funded Medicare and Medicaid programs.

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The vote in the vaccine mandate case was 6 to 3, with the liberal justices in opposition. The health care case split was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joining the liberal justices.

The court majority explained the distinction it drew this way: COVID–19 is not an occupational hazard as it spreads at home, in schools, at sports games, and where people get together. As such, OSHA, the federal workplace safety agency, is not authorized under federal law to protect broadly against it.

But the U.S. Department of Health and Human Services has a responsibility to protect the patients at facilities funded by federal health dollars and can enact regulations to ensure patient safety such as vaccinations for nurses and doctors against COVID-19.

“The key issue in both cases was neither whether vaccine mandates are beneficial nor whether people have a right to refuse them. Rather, the issue was whether Congress had given the agencies the power to impose the mandates,” said Michael R. Dimino, law professor at Widener University Commonwealth Law School.

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Business lobbyists had complained about the cost of the measure, which would affect over 80 million workers, including 1.8 million in the Philly area, at firms employing 100 or more workers.

In applauding the decision, Leslie Sarasin, president of the Food Marketing Institute, one of 10 employer groups that sued to block the requirement, said that the food sector would find itself grappling with an even more acute worker shortage on top of the other economic distortions brought on by the health crisis.

The high court “recognized the challenges the federal rule would have imposed on food retailers and manufacturers, our employees and, ultimately, American consumers,” Sarasin said.

Suspending federal enforcement “will help ensure the food industry is able to continue meeting our customers’ needs as efficiently and effectively as possible amid the ongoing supply chain and labor disruptions,” Sarasin added in a statement.

A local labor leader disagreed. “It would have been really good if the [OSHA policy] had been put into effect, with everybody following the same standard,” said Wendell Young IV, head of UFCW Local 1776, which represents 35,000 supermarket, pharmacy, and food factory workers in Pennsylvania and a few neighboring areas.

The OSHA requirement set a national standard that took pressure off individual employers to do the right thing even when it was unpopular, he added.

Young said some big employers have been planning, in the absence of a federal rule, to step up vaccination and testing requirements, and to pay sick employees to stay home under quarantine rather than risk sickening more workers.

He cited Tyson Foods and JBS, the meatpacking giant, among the large employers who had agreed to encourage vaccination and testing, even before the Biden policy was announced last year.

Young said 90% of workers at the JBS plant in Souderton were vaccinated after the death of a union shop steward, Enock Benjamin, early in the pandemic — a higher level than in surrounding, affluent Montgomery County.

“In the more rural areas, some employees aren’t taking it as seriously, as well as some of our members,” Young admitted. “But they are taking it seriously where they see the impact on management’s ability to run the plant” as sick workers called out. Young said management at the Cargill and Hershey plants in Hazle Township, Luzerne County, among others, are negotiating tougher anti-virus rules.

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The largest U.S. employer affected by the ruling, Amazon, had no immediate comment on the decision or its impact.

Amazon, whose business has risen rapidly during the pandemic as more people had packages shipped to their homes instead of shopping in stores, employs 1.4 million worldwide, a majority of them in the U.S., including more than 6,000 in the Philadelphia area, the company said.

The company’s publicly-posted hiring guidelines state that masks and other protective gear are “available” to all employees and visitors, and people at Amazon plants in recent months have been required to wear masks. But Amazon’s posted guidelines include no guidance about vaccines, and a vaccine ID has not been required for entrance to Amazon facilities.