Last month, that court ruled 6-3 against the Occupational Safety and Health Administration’s emergency temporary standard that would have mandated larger employers to require their workers to get a COVID-19 vaccine or get tested weekly, The National Law Review reports reports. “Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the majority wrote in its ruling.
The ruling noted that the “universal risk” posed by COVID-19 “is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”
The Supreme Court ruling effectively placed a hold on the December 17 ruling by the Sixth Circuit Court of Appeals that reinstated the emergency temporary standard after the Fifth Circuit dissolved the mandate. “Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the ruling notes.
The majority ruling does recognize that OSHA is within its authority to impose targeted rules on businesses where COVID-19 is especially risky, such as workplaces that are crowded and where employees are in close quarters, which may make it more likely for the virus to spread.
The Supreme Court did also rule separately to allow for a limited vaccine mandate for employees at government-funded healthcare facilities, BBC reports. Biden urged “business leaders to immediately join those who have already stepped up--including one-third of Fortune 100 companies--and institute vaccination requirements to protect their workers, customers, and communities.”
The Sixth Circuit could do another review over whether OSHA was in its legal right to reinstate the emergency temporary stay, but this is seen as unlikely with the Supreme Court already striking it down in its majority ruling last month.
Peter Cappelli, George W. Taylor Professor of Management and director of the Center for Human Resources at The Wharton School of the University of Pennsylvania, writes for Human Resource Executive that the ruling saddles HR with some tough judgement calls.
The ruling does not require employers with existing mandates to ditch them or to prevent those wanting to institute mandates to move forward. Cappelli advocates that employers side with the “rights of the majority of our current employees who have been vaccinated.”
“They have been through a lot during the pandemic, and the surveys I’ve seen indicate that their trust in their employer is pretty high,” Cappelli writes. “Most think we were looking out for them. Are we?”
Cappelli acknowledges that fairness questions around controversial issues are among the most potentially problematic for HR leaders, but says there should not be any ambiguity with vaccines in the workplace. “Allowing one increasingly small group to put the others at risk, especially when there is no serious justification for doing so, demonstrates a lack of concern for the other employees,” he writes. “We should stop thinking about mandates as squeezing the pretty weak rights of one group–who don’t have to comply, of course, they can always go elsewhere–and protecting the more powerful rights of others.”
Columbia Sportswear is one company that is keeping its own vaccine mandate in effect and expects its corporate office staff to be vaccinated or for those who refuse to submit a religious or medical exemption by February 1, KATU reports. "I think they were signaling pretty strongly how they were going to come out, but it doesn’t change our commitment to the vaccination mandate for our headquarter employees at all,” says Richelle Luther, Columbia Sportswear Chief Human Resources Officer. Luther does acknowledge, however, that “it certainly would have made it easier if we think that we’re all in this together and working under the same rules.”
The country’s biggest industry trade groups have praised the Supreme Court’s ruling to freeze the mandate, which would have impacted 80 million workers, CNN reports. "While NRF [National Retail Federation] has maintained a strong and consistent position related to the importance of vaccines in helping to overcome this pandemic, the Supreme Court's decision to stay OSHA's onerous and unprecedented Emergency Temporary Standard is a significant victory for employers," says David French, senior vice president of government relations with the NRF.
The NRF and 26 other trade associations made oral arguments in front of the court against the mandate.