Private Employers’ Ability To Enforce Mandatory COVID-19 Vaccination Policies

Jennifer Fewell Phillips By Jennifer Fewell Phillips

On January 13, 2022, the U.S. Supreme Court blocked the rule of the Occupational Safety and Health Administration (OSHA) that mandated that businesses with more than 100 employees: (1) require their employees to be vaccinated for COVID-19 or (2) test employees weekly for the COVID-19 virus. In contrast, the Supreme Court allowed the Centers for Medicaid and Medicare Services (CMS) to continue enforcing its rule that requires certain healthcare workers to be vaccinated for the COVID-19 virus.   Federal courts have also blocked President Biden’s requirement that employees of federal contractors in “covered contracts” be fully vaccinated against COVID-19.

The Supreme Court’s recent OSHA decision and the stay of the federal contractor mandate do not affect a private employer’s ability to choose to adopt and enforce a mandatory vaccination policy. These rulings merely question whether the government has the power to require private businesses to adopt such policies.  The Supreme Court held that OSHA exceeded its statutory authority, but CMS did not. In their concurrence, Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, explained that “[t]he question before us is not how to respond to the pandemic, but who holds the power to do so…[T]hat power rests with the States and Congress, not OSHA.”

In light of the Supreme Court’s ruling and OSHA’s decision to withdraw the rule, some employers (like Starbucks) are abandoning their mandatory vaccination policies, while other employers (like Carhartt) are moving forward with enforcement of their mandatory vaccination policies.  Employers adopting and enforcing mandatory COVID-19 vaccination policies must make sure that they have procedures in place for employees to request exemptions from the requirements because of medical or religious reasons.  To avoid potential disability or religious discrimination claims, employers should thoroughly review exemption requests (on a case-by-case basis) to determine whether the requested exemption creates a direct threat to the health and safety of the employee or others in the workplace and, therefore, creates an undue hardship.

Employers must also ensure that they are following state laws pertaining to mandatory vaccination policies. Some states have recently passed legislation banning employers from adopting and enforcing mandatory vaccination policies.  For example, last November, Tennessee enacted legislation that prevents private businesses from requiring employees to provide proof of COVID-19 vaccination status or taking any adverse action against an employee for failing to do so if the employee “objects to receiving a COVID-19 vaccine for any reason.”

Last November, the Ohio legislature also attempted to prevent public and private businesses from adopting mandatory vaccination policies or requiring proof of vaccination.  The Ohio House of Representatives passed HB 218, the so-called “Vaccine Choice and Anti-Discrimination Act.”   Ohio Senate Republicans purportedly had enough votes to pass the bill but it stalled in the Ohio Senate after Governor DeWine vowed to veto the bill.  Advocacy groups in Ohio have already made attempts to place a vaccine mandate ban on the November 2022 ballot.