Is Your Company's COVID Vaccine Mandate Illegal?

The Supreme Court, on January 13, 2022, blocked the Occupational Safety and Health Administration (OSHA) from enforcing a COVID-19 vaccine mandate for employees of large companies. The ruling, however, creates some confusion since some companies, such as United Airlines, already had mandates in place, and others are planning to implement them. 

Some companies that were requiring vaccination for employees are canceling their policies because of the new Supreme Court ruling. The New York Times reported that Starbucks, which had planned to implement a vaccine mandate, told employees this week that it was ending the vaccination requirement in light of the Court’s decision.

However, the Court ruling does not mean your employer needs to lift their mandates, and it doesn't keep them from implementing a new one.

“What the Court’s ruling does is to keep OSHA from enforcing a vaccine mandate,” Timothy Taylor, JD, an employment and litigation partner in the Tysons, Virginia office of the law firm Holland & Knight, told Verywell. “Companies, so long as they don’t violate local or state laws, can still impose a mandate—with some exceptions—for their employees." 

OSHA Requirement Overturned for Now 

The Court was responding to a case brought before it about OSHA's decision to issue an “emergency temporary standard” (ETS) that would have required companies with at least 100 employees to mandate either vaccination or weekly testing (plus mask-wearing) for their employees. The ETS included both religious and medical exemptions. 

But in its 6-3 decision, the Court said the ETS was effectively a public health measure that went beyond OSHA's authority to regulate occupational hazards.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the Court wrote in its majority opinion. 

Technically, the Court’s ruling was actually that the ETS cannot go into effect while cases brought against it are winding their way through lower courts. But many labor lawyers, including Taylor, think the arguments in the majority opinion mean that if the case did make its way back to the Court, it would rule against OSHA's enforcement of a mandate again.

In a statement released the day the Court issued its ruling, President Joe Biden still urged companies to issue mandates.

“The court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy," Biden stated.

Employers Can Still Impose Mandates Where Local and State Law Allow 

There's no federal law that prohibits a vaccine mandate, though some states like Montana and Tennessee already do, according to Amanda Sonneborn, JD, a partner in the Global Human Capital division in the Washington, D.C. office of law firm King & Spalding.

“Employers can still require employees to be vaccinated, but they won’t be able to point to OSHA as the reason they are doing it,” Taylor added. “And they will need to think about possible ramifications.”

Employees might leave for jobs that don’t require vaccinations. On the flip side, some customers might avoid businesses with unvaccinated employees.

Public health experts worry that confusion around the Supreme Court decision could make people think they have gotten a pass not to be vaccinated, Georges Benjamin, MD, executive director of the American Public Health Association, told Verywell.

He said some employers have already or are considering, adding a requirement for the vaccine booster dose as well, something the APHA plans to require shortly for its employees.

Type of Work Matters

The Biden administration could try to rewrite the rule more narrowly, Sonneborn noted. In a separate decision issued the same day, the Court ruled that healthcare facilities that get funding from Medicare and Medicaid (which are divisions of the U.S. Department of Health and Human Services) can require employees to be vaccinated.

The Court explained the discrepancy between the two decisions lies in the nature of the work.

“We agree…the [Health and Human Services] Secretary’s rule falls within the authorities that Congress has conferred upon him. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm," the justices wrote.

With other professions, COVID-19 risk could play a role in whether a vaccine mandate is appropriate, too.

“The White House could, in theory, set vaccine mandate rules for businesses where COVID-19 poses a particular risk, like in a meatpacking plant, where employees work closely together and might be at greater risk of spreading the virus to co-workers,” Kavita Patel, MD, MPH, a primary care physician, and health policy advisor from the Obama Administration, told Verywell.

Taylor said that employers who do put a vaccine requirement in place “need to be mindful of disability and religious discrimination laws and to consider exceptions to vaccination, testing, or masking if an employee says they infringe those rights.” 

Taylor added that some states may try to set or widen mandates of their own, making it harder in some states for employers to implement vaccine requirements and easier in others. 

Experts Still Support Mandates 

Public health experts were hopeful that an employer vaccine mandate could have moved the needle on vaccination rates—even if it wasn't perfect.

“Even if the Court had ruled in favor of OSHA’s mandate, we would still be way off from herd immunity because it wasn’t a hard mandate; it called for vaccine or weekly testing/masks,” Patel said. 

So, how do experts suggest the officials try to bump up vaccination rates now?

“To get more people vaccinated, we have to put the vaccine requirements in place in all sectors of life, such as social activities like gyms and restaurants,” she said. “If you start adding the requirement for the ways people want to engage in society, that’s how you will get to increased vaccination rates.”

The information in this article is current as of the date listed, which means newer information may be available when you read this. For the most recent updates on COVID-19, visit our coronavirus news page.