COVID-19 Response Resource Center: Timely Counsel for your Business

Last month, the U.S. Supreme Court struck down the Occupational Safety and Health Administration’s (“OSHA”) COVID vaccine or test mandate for businesses with at least 100 employees. Thereafter, the Biden Administration officially withdrew the mandate as an Emergency Temporary Standard (“ETS”) but left open the possibility of a permanent standard that would include some or all elements of the ETS. This now leaves many employers wondering what to do. Should they continue with their plans to implement mandatory vaccinations? Should they provide an option for weekly testing? Should they do nothing unless and until required to do so?

According to a poll conducted last month by consulting firm Gartner Inc., 35% of companies said the Supreme Court ruling would not derail their plans to require vaccinations or testing, compared with just 4% who said they were dropping their mandate. A further 29% of companies had not decided yet, while 12% said they are now less likely to impose a requirement.

With the COVID-19 vaccine becoming as much a political issue as a health one, whatever an employer decides is sure to spark considerable consternation. Starbucks, for example, withdrew its plans to require vaccination or testing and has faced publicly outcry and a push for boycotts. At the other end of the spectrum, workwear company Carhartt plowed forward with its mandate, and the backlash was similar, including calls for boycotts.

There is simply no one-size-fits-all answer. Employers need to analyze their market, customers and employees and consider the likely fallout from their decision. They need to consider COVID infection rates and possible labor shortages when considering whether to implement a policy that includes COVID-19 vaccination, with or without an option for weekly testing.

In addition to having to pick their social and political backlash, without the OSHA mandate to rely on employers also have to consider various state and local laws and regulations. In December, New York City became the first city to mandate that any public or private employees who deal with the public be vaccinated. Yet other states have very clear policies against vaccine mandates. Florida, for example, will impose a $50,000 fine per violation to companies with more than 100 employees and a $10,000 fine per violation for companies with less than 100 employees who enforce vaccine mandates without affording employees liberal exemption options. Although less stringent, Kansas and Texas also have laws disfavoring vaccine mandates. So, companies with employees in many states or cities may need to have different rules for different locations.

Before enacting a policy, companies should consider how both their employees and customers may react and prepare to communicate accordingly. Employers should educate and inform their employees on the standards that help them frame their policies, including guidance from OSHA, the Centers for Disease Control and local and state laws. This will allow internal and external communication with employees and stakeholders to be consistent and transparent.

Whatever companies decide to do, they need to plan for the backlash. There may be worker shortages, absences or resignations. We are already seeing many businesses forced to shorten hours, close on certain days, or outsource work to deal with these impacts on their workforces.

Even if employers don’t want to enact a policy that includes vaccination, it may be beneficial to begin gathering information about the vaccination status of each employee. Having this information allows employers to prepare to pivot quickly in response to new laws and regulations. While even gathering this information can spark pushback from employees, educating employees can help. For example, some employees believe that the Health Insurance Portability and Accountability Act (“HIPAA”) prohibits employers from asking for this information. For most employers, this is simply not true, and they can require employees to respond with information about their vaccination status. Again, though, state and local laws and regulations need to be considered.

In the end, employers should consult with an attorney about the pros and cons of a COVID-19 vaccine and/or testing mandates for their workers and evaluate what best balances their business goals, while still prioritizing employee and public health and safety.