What the Supreme Court strike-down of Biden’s vaccine mandate means for employers

In a 6–3 decision issued Thursday, the Supreme Court blocked the mandate for private employers with at least 100 workers put in place by the Occupational Safety and Health Administration (OSHA). Many experts predicted this outcome following oral arguments last week that seemed to indicate the majority of justices felt the mandate was too broad. 

“It is now up to states and individual employers to determine whether to make their workplaces as safe as possible for employees,” President Joe Biden said in a statement regarding the decision Thursday.   

Employers who have already instituted vaccine mandates in their workplaces may see some blowback, but will likely stick with the choices they have made. It’s companies that have not yet fully implemented vaccine requirements that face the toughest road ahead. They now must decide on their own how to best protect their employees, and wrestle with different and sometimes contradictory sets of state and local guidelines that may cost them time and money.

Figuring out a ‘patchwork’ system

Thursday’s Supreme Court ruling hits companies operating in multiple states particularly hard. 

The federal OSHA mandate would have basically allowed those employers to have a uniform rule, says Robert Duston, a partner at Saul Ewing Arnstein & Lehr, a labor and employment law practice. But now they’ll be forced to set up different rules to comply with varying state regulations. 

As of last month, about 25 states have vaccine mandates, while 13 states have restricted vaccine mandates in some form. Montana and Tennessee have sought to entirely ban vaccine mandates, but those bans are being challenged legally.

“Some are calling this basically a patchwork—we had a patchwork already,” Duston says. This means companies with locations in multiple states likely can’t maintain the same vaccine standard across their workforce. And navigating those different state and local rules is expensive and challenging for companies. Senior leaders and corporate legal counsel will likely need to spend far more time on compliance than they would have otherwise under a single federal rule. 

The differences in regulations state by state is also concerning from a public health standpoint, says Lorraine Martin, president and CEO of the National Safety Council. “​​We aren’t giving consistent guidance across our country,” she says. “We know what it takes to keep employees safe in this pandemic, and now we’ve made it even more complicated for companies to navigate.”

For firms operating in states such as Texas and Florida that have put restrictions on vaccine mandates, Thursday’s ruling leaves them with fewer options to impose broad vaccine requirements. “Of those major, multistate employers that wanted to impose mandates, they are effectively prevented from doing that,” Duston says. 

And the situation could get more complicated with several states now expected to issue their own rules following the Supreme Court’s decision, says Alka Ramchandani-Raj, an attorney with Littler focusing on OSHA law. “We’ve already heard from certain states that they were intending to do their own mandate,” she says.

Some states have required certain workers, such as state employees, to get vaccinated, but stipulated that those who are unvaccinated need to undergo routine testing or are required to wear a mask. 

“They could do whatever they want now,” says Melissa Bailey, a lawyer with Ogletree Deakins focused on occupational safety and health issues. “You could have a state that says all unvaccinated workers must mask, but maybe they skip the testing options, since that’s been so difficult for many employers to be able to comply with.” 

Legal skirmishes over vaccine mandates will continue and may even surge

Even though the Supreme Court struck down Biden’s vaccine mandate for private employers, there are still federal laws and legal precedent that generally allow companies to require their workers to get vaccinated.  

Yet companies are likely to start hearing from employees who balk at getting vaccinated now that the Supreme Court says they don’t have to, says Bailey. “There’s going to be some blowback,” she notes. 

Employees may even try to sue, according to Carl Tobias, a law professor at the University of Richmond. “That’s kind of the worst-case scenario, but I can imagine that happening,” Ramchandani-Raj says. 

That doesn’t, however, mean that employees would win if they did take legal action. The “vast majority of courts” have rejected employee lawsuits against employers’ vaccine mandates, notes law firm Fisher Phillips. “It doesn’t seem like the courts think there’s anything wrong with an employer making that decision that they think their workplace is safer with a vaccine mandate,” notes Ramchandani-Raj. 

That, of course, doesn’t mitigate the legal fees companies may rack up defending their own vaccine mandates, even if they ultimately prevail. United Airlines, for example, implemented its own vaccine mandate a month before the Biden administration announced federal mandates, and has fought off several legal challenges. 

But for some companies, it may be worth the costs if a vaccinated and boosted workforce is less prone to sick time and severe illness. 

Companies may be afraid to mandate vaccines on their own

Some companies may feel it’s too risky to require that a significant number of their employees be vaccinated, afraid they may quit instead.  

“Our recent survey suggests that many more employers would have pursued vaccine mandates if the rule was left in place,” says Dr. Jeff Levin-Scherz, population health leader at Willis Towers Watson.

Among unvaccinated adults, 48% say nothing will persuade them to get a COVID vaccine, while only 6% say they would get one if their employer mandated it, according to the latest KFF COVID-19 Vaccine Monitor research.

Some employers implementing vaccine requirements were hoping that the OSHA mandate would give them cover, forcing their competitors to roll out basically the same rules so employees would have less incentive to jump to another company without mandates. If the OSHA mandate had been upheld, companies with vaccine requirements might also have been able to point to federal regulations, rather than spending time defending their decision. 

“There were a large number of employers that started preparing to comply with the OSHA rule, some joyfully with a hard mandate…and then a much larger group that said, ‘What’s the bare minimum I have to do?’ Anybody who said, ‘What’s the bare minimum I have to do to comply?’—yesterday those plans got set aside,” Duston says.