If you were sweating the outcome of the so-called Biden mandate, you can relax — there’s no pressing deadline to fret over.
Nope, now the only thing to worry about is the ongoing pandemic.
Workplaces with more than 100 employees will not have to comply with a federal requirement that workers be vaccinated against Covid or be tested weekly and wear masks. That’s the word from the Supreme Court following four hours of oral arguments from challengers on January 7. The Supreme Court scotched the mandate that was set to affect roughly 84 million American workers beginning February 9.
The Supreme Court decision means large restaurant employers will be able to make their own decisions regarding how to keep their workforce safe. Whatever decisions you make in that arena, you can rest easy that a federal agency won’t be citing you for non-compliance of your own policy. But it also puts you on the hook for maintaining safety in your workplace.
Quick recap: In September, President Biden announced that businesses larger than 100 employees would have to comply with a vaccine mandate or submit to weekly Covid testing. In November the Occupational Health & Safety Administration (OSHA) followed up with a set of guidelines called an emergency temporary standard (ETS), a 500-page roadmap that laid out the ground rules for compliance: how to document employee vaccinations, exemption policies, deadlines, and penalties.
None of that will become law now, but if you’re the sort of business owner who would like to see what a comprehensive, legally sound framework looks like, you can still adopt it at your workplace.
Biden’s mandate faced heavy opposition from the minute it was announced.
In a matter of hours after OSHA issued the ETS guidelines, two dozen states as well as businesses and religious institutions sued. In response, the U.S. Court of Appeals for the Fifth Circuit in Louisiana issued a stay that put the mandate on temporary suspension.
The Sixth Circuit Court of Appeals was picked to take over the case in late November and lifted the stay. The 2-1 majority held OSHA was likely within its legal authority to implement the "emergency temporary standard" requiring vaccines or testing. But that was short-lived. Within hours of that announcement, dozens of business groups and religious organizations asked the Supreme Court for a new emergency stay.
During oral arguments before the Supreme Court, two components of the mandate were at issue: the aforementioned vax-or-test requirement for large employers; and a vaccination requirement for healthcare workers in hospitals, nursing homes, and other facilities that receive Medicare or Medicaid funding.
Conservative justices found 6-3 that the federal government cannot enforce employers to require vaccinations. But the court upheld the requirement for health care workers.
For anyone running a non-healthcare company, the court’s decision means Covid policy is back in your hands. Employers can decide how to manage the health and wellbeing of their staff. That freedom also brings responsibility.
As labor and employment attorney Adam Gersh told Back of House, employers can still create their own business vaccine mandate if they wish, perhaps using the OSHA ETS as a guide. Gersh advised restaurant owners to put their vaccination policy in writing and use the help of an employment attorney to build workplace rules to protect the safety of your staff, now without the worry of OSHA citations.
Businesses that do execute their own vaccination policies must follow Title VII and the Americans with Disabilities Act (ADA). Title VII protects employees from discrimination and harassment on the basis of race, color, national origin, gender, pregnancy, and religion. ADA protects employees from discrimination and harassment on the basis of a disability.
Even without a pandemic or vaccination policy, workers can always sue employers. That doesn’t mean an employee has a case. By staying compliant with the Centers for Disease Control & Prevention guidelines, you can better insulate your business from liability. If you do choose to create a vaccination policy, an employment and labor attorney can help you protect your business as you safeguard the health of your workers.