The Supreme Court’s decision last week to block President Joe Biden’s Covid-19 vaccine-or-test policy for large businesses leaves a patchwork quilt of state, local, and city requirements that companies will have to follow as best they can, according to experts.
The lack of federal action on a vaccine policy means companies seeking to require employees to be vaccinated or tested might have to apply different rules at different facilities within the same organization. That approach risks undercutting corporate cultures that have been carefully crafted and nurtured over many years.
“All the energy that used to go into ‘one culture,’ to be more consistent across all facilities, this decision has really fractured that,” said Devjani Mishra, a leader of Littler’s COVID-19 Task Force and its Vaccination Working Group. “This really complicates the process of returning to the office—of how to make it meaningfully safer.”
One general counsel for a public company whose stock is listed on the Nasdaq exchange told Compliance Week the company’s approach for its Covid-19 policies has been to do the best it can to comply with the rules for each of its local offices.
“By necessity, it’s going to have to be a piecemeal approach,” said Leonard Samuels, partner at law firm Berger Singerman, regarding corporate vaccine policies. “It will mean different policies in different locations, regrettably.”
Many companies have implemented some sort of vaccine requirement but have stopped short of a mandate for all staff members, according to a recent story in the Wall Street Journal. General Electric and Union Pacific put their corporate vaccine mandates on pause following the legal challenges to the Occupational Safety and Health Administration (OSHA) rule, the WSJ reported.
Starbucks, which had implemented a vaccine mandate, rolled its requirements back following the Supreme Court ruling, as was widely reported Wednesday. The company has since been met with calls for a boycott.
“All the energy that used to go into ‘one culture,’ to be more consistent across all facilities, this (Supreme Court) decision has really fractured that.”
Devjani Mishra, leader of Littler’s COVID-19 Task Force
Other companies were clearly waiting for legal challenges to the OSHA rule to be concluded before implementing a Covid-19 vaccine requirement for their workforce.
At the moment, no state has implemented its own vaccine-or-test policy following the Supreme Court’s Jan. 13 decision. A handful of states, however, have passed laws expressly forbidding businesses from implementing a vaccine-and-test policy like what was required by the OSHA rule. Those states include Florida, Georgia, Missouri, Nebraska, and Texas, according to an updated list compiled by the American Association of Retired Persons.
Some states—like California, Massachusetts, New Jersey, New York, and Pennsylvania—require state employees and healthcare workers to be vaccinated or submit to weekly testing. In a separate ruling last week, the Supreme Court approved a vaccine mandate for healthcare workers whose employers receive Medicare or Medicaid payments. That mandate, which covers most medical facilities, does not have a testing provision for unvaccinated workers.
And then there are varying mask policies and vaccine check requirements at the local level.
Cities including Boston, New York, Chicago, New Orleans, and Los Angeles have ordered local businesses to check the vaccination status of patrons before allowing them to enter. Washington, D.C. took the idea a step further, having implemented a vaccine passport program called VaxDC.
One major problem most businesses had with the OSHA rule was the testing requirement for unvaccinated employees. Although the federal government recently announced a plan to mail at-home tests to anyone who asks for them, the tests are difficult to find at the moment. Wait times to receive tests at local pharmacies can stretch on for weeks in some places.
“It’s a relief for many employers because tests are so scarce,” said Mishra of the Supreme Court’s decision. “Many were wondering how they would find the tests and how they would comply with that piece of it.”
Samuels, whose firm is based in Florida, said he spoke to a client this week who said 40 percent of its employees were unvaccinated and weren’t likely to become vaccinated.
“There’s a real fear among some employers that requiring a vaccine would cause them to lose valuable employees in a tight labor market,” he said.
On the flipside, some employees might be more fearful about returning to work in person without the OSHA vaccine-and-test rule in place, Mishra said.
“The conversation will likely shift back to wearing masks; contact tracing; staying out of work when folks are showing symptoms; and increased testing, once those tests are readily available,” she said. Incentive programs that encourage but don’t require vaccinations among employees might return as well, she said.