What to Do While the Supreme Court Weighs the Business Vaccine Mandate

For large restaurant operators across the country, the government’s vaccinate-or-test requirement for businesses has presented a looming deadline since autumn. Set to go into effect on January 10, the Biden vaccine mandate would require that all businesses employing at least 100 people either get fully vaccinated or provide negative Covid test results weekly. But after dozens of lawsuits against the mandate, the case on January 7 reached the Supreme Court, where justices heard oral arguments challenging the regulation that would affect up to 84 million workers.

After nearly four hours of oral arguments on emergency requests, it’s still not certain when or whether the court will decide to put on hold an appeals court order that allows the mandate to go forward.

As CNN reported, in "these types of emergency requests, the Supreme Court is not required to issue full opinions. It could simply issue one-line orders, that could come at any time."

What does this mean for restaurant owners trying to follow the letter of the law? Until the Supremes say otherwise, businesses need to get into compliance. 

When will the vaccine mandate take effect?

The Supreme Court so far hasn’t blocked the vaccination mandate. So it begins to take effect on January 10.

Even with that deadline in effect, the Occupational Safety & Health Administration (OSHA) said in a statement that it won’t cite anyone for noncompliance with the testing requirement before February 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard."

So there’s no need to panic yet about the testing requirement. But if you plan to offer the testing option, you should organize those efforts now.

When will we have a decision from SCOTUS?

When SCOTUS will announce a decision on the Biden vaccine mandate is truly anyone’s guess.

For more than three hours, the justices heard arguments from National Federation of Independent Business v. Department of Labor, during which the conservative majority appeared ready to reject the mandate.

Chief Justice John Roberts and Justices Neil Gorshuch and Brett Kavanaugh all sounded skeptical of OSHA’s authority to enact such a regulation and indicated “that the OSHA rule could be invalid under a legal doctrine that says Congress must provide a clear statement on a specific issue in order for a federal agency to issue broad regulations on it,” per reporting from Reuters.

Still, the court didn’t indicate when it might render a ruling. Given that the mandate is officially in effect, though, news outlets such as CNN surmise that a ruling could come as early as this week. 

What should restaurants do while they wait for the SCOTUS decision?

Given the circumstances, it doesn’t hurt to be in compliance. That means masking for unvaccinated workers and paid time off for vaccination and recovery.

Employers also should publish policies on vaccination as well as determine employee vaccination status. The OSHA’s ETS — 500 pages of regulatory details — requires that employers find out that status, get proof of vaccination, and maintain those records. As labor and employment attorney Melissa Spence of Butler Snow Law Firm told Back of House, proof of vaccination can be a card, other medical records, copies of records from a pharmacy or public health system, or other official documents that show the basics about the vaccine: type, date, and name of the site that administered it. If none of those are available, she says, you can get a signed, dated attestation from the employee.

Staff members must alert their employer of a positive Covid test and stay home to protect co-workers.

What about other vaccine mandate questions?

If you’re still confused or uncertain about how to proceed given the legal limbo of awaiting a SCOTUS announcement, the best course of action to take is to contact a labor and employment attorney for guidance. They can address your concerns and help get your restaurant in compliance whether or not the mandate is enforced. [Photo by Calugar Ana Maria on Unsplash]