OSHA’s Vaccine Mandate: Less is More
In a 6-3 decision the United States Supreme Court struck down OSHA’s vaccine mandate. That mandate would have required businesses with 100 or more employees to mandate vaccination for on-site employees and/or require testing every seven days. Finding that a rule with such vast political and economic effects was beyond the power of the Occupational Safety and Health Administration – or likely any administrative agency – the mandate has been rejected. In short, the Court’s opinion can be boiled down to its belief that notwithstanding the merits or intention of the rule, only elected officials may yield the sort of power necessary to impose a mandate having the breadth and impact associated with the mandate.
Importantly, however, the concept of a vaccine mandate was not per se rejected. Rather, a mandate imposed through Congress and/or the acts of state and local legislatures -– and for that matter state and local prohibitions of mandates – is apparently permissible. Thus, existing state and local mandates are not disturbed by the Court’s ruling. Further, OSHA could still impose narrowly tailored rules more closely drawn to specific risks posed by the environment or nature of particular jobs. So, where Coronavirus poses a unique threat based upon the nature of a specific industry, OSHA may be permitted to impose vaccination or testing rules. In that regard, a mandate having less significant impact and application may very well be constitutional, but something this broad must be reserved to the legislative -- not administrative -- process.
What Does This Mean For Employers?
Employers remain free – subject to state and local government laws – to impose -- or not impose -- their own safety standards, whether those involve masks, testing, or vaccination. Employers further remain able to incentivize the use of vaccines, again subject to state laws. For those employers who nonetheless have decided to move forward with a voluntary vaccine or testing mandate, in addition to following local rules, they must ensure that such rules have accommodations in place to address scenarios where vaccination is contraindicated and/or violate religious beliefs.
If you have any questions about this alert or any of the services we offer please contact our legal team.
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