For the past year or so, Courtney Malveaux has advised companies on the vaccine mandates created by the federal Occupational Safety and Health Administration, or OSHA. The main thing he has learned is not to take any fact for granted. He jokes that before giving a presentation, he always checks his email and a few sites online to make sure the landscape hasn’t completely changed, so the presentation doesn’t “blow up in his face.” Malveaux works at the law firm Jackson Lewis P.C. and knows more than anyone how confusing OSHA’s vaccine and testing requirements appear to employers. When I talked to him recently, he said the Supreme Court ruling that struck down the OSHA mandate was already old news. Since then, OSHA has withdrawn the standard before appearing before a lower court.
These events made it seem like the controversial federal mandate was dead in the water to the naked eye. That’s partly true, but Malveaux told me the picture is a bit fuzzier. “When people see the headlines, they assume the OSHA mandate is gone for good,” Malveaux said. “It may catch several employers by surprise to see that a permanent standard is already being crafted.”
What he means boils down to the nuances of federal rulemaking and bureaucracy. OSHA’s vaccine mandate and the testing requirements were issued as a so-called emergency temporary standard (ETS). Under federal law, OSHA can issue these emergency rules for six months when workers face a “grave danger.” They argued that the threat from COVID-19 constituted that danger.
Now, emergency standards face a more demanding legal test to show they’re necessary. After losing the Supreme Court case, OSHA has abandoned the emergency vaccine mandate standard. That doesn’t mean the mandate is out of the question, though. They could still go back to the drawing board and form a permanent mandate standard through its formal rulemaking process, which would require a notice-and-comment period and would certainly also be challenged in court. Malveaux thinks OSHA will do this, and employers could be hearing about an OSHA vaccine mandate again around summertime or fall.
While reading the Supreme Court ruling, Malveaux said the court laid the groundwork for a permanent standard. “While people are declaring the mandate is no more, it’s more like a ‘zombie’ standard,” he said. “It’s still out there, and it’s coming back. It’ll come back in a different incarnation, but that’s what OSHA’s working on.”
In its emergency standard form at least, OSHA’s vaccine mandate would’ve required roughly 84 million U.S. workers to get vaccinated or tested weekly. A divided Supreme Court halted enforcement, saying in an unsigned opinion, “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.” The court’s three liberal justices dissented and wrote an unusual joint opinion. The ruling is a temporary victory for 26 business groups, including the National Federation of Independent Business, and 27 Republican-led states that were the lawsuit’s plaintiffs. Their lawsuit against OSHA claimed the safety agency had exceeded its authority. After the Supreme Court’s ruling, the case was heading back to the U.S. Court of Appeals for the Sixth Circuit for further consideration, but OSHA ultimately withdrew the rule.
All of the back and forth has left the office industry wondering how or if they will need to require proof of vaccination and has further muddied the timeline for the full return to work.
Catch-22 for employers
While the OSHA vaccine mandate could certainly get reinstated, in the meantime, employers are left in a bind on deciding whether to establish their own mandates. There’s a complex patchwork of state and local rules regarding mandates, and then there’s also the court of public opinion for consumer-facing companies. In light of the Supreme Court’s ruling, the response from major companies has been a mixed bag. Thirty percent of major employers are going ahead with a vaccine mandate, 50 percent are working on policies that give employees the option of vaccination or testing, and 20 percent of employers have dropped mandate policies altogether, according to a survey by management consultant Gartner.
If a company wants to enforce a vaccine mandate, it’s generally legal to do so, as long as there are exemptions for religious and medical reasons and don’t run afoul of any state or local laws. But vaccine mandates are an incredibly contentious political topic right now, and it seems like no matter what companies do, they’re bound to face blowback.
For example, Carhartt, the apparel-maker known for heavy work clothes, recently announced in an internal all-staff email that its vaccine mandate would stay in place, despite the Supreme Court ruling. The company immediately faced public scorn from conservatives on social media, who called for a boycott on its products and questioned the move given its traditionally blue-collar customer base. Meanwhile, Starbucks announced it was dropping its mandate for its 235,000 U.S. employees. Predictably, more liberal, pro-vaccine customers took to the Twitterverse to unleash fury on the company.
Both of these cases are interesting because they seem contradictory. Why would Carhartt uphold its mandate, given its more conservative customer base, while Starbucks rolls its mandate back, despite the plethora of Frappuccino-sipping, pro-vaccine customers? While these are examples of major companies in the public eye, it shows the decision-making tightrope employers are walking on mandates. Worker safety and health are presumably the main factors in deciding to keep mandates or not, but employee and customer sentiment can play a role, too.
More than 73 percent of Americans over 18 years old are fully vaccinated, according to the Centers for Disease Control and Prevention. Unvaccinated people tend to be younger than 50 and less educated. So, for a company with a largely white-collar workforce in a coastal area, enforcing a vaccine mandate could be a little easier. For example, CitiGroup announced it’s keeping its mandate in place after 99 percent of the company’s tens of thousands of U.S.-based employees complied with a mid-January vaccination deadline.
But the fault lines over vaccine mandates aren’t just based on education levels and white-collar versus blue-collar. There are also significant regional disparities between how people throughout the United States think about vaccines and mandates. Lately, there have been few topics as controversial. Thousands of protestors descended on Washington, D.C., in January, demonstrating against vaccine mandates. Demonstrations have been held outside the states, too. In Canada’s national capital of Ottawa, a ‘Freedom Convoy’ of truckers arrived to oppose vaccine mandates and other pandemic restrictions.
No matter a company’s political stance or its desire to wade into the vaccine mandate quagmire, local law can still require proof of vaccination. This can lead to situations where a company might not perform its duty of proving employees are vaccinated, leaving building and facility managers responsible for the task.
‘Gut-check’ time
The goal of OSHA’s vaccine mandate, or any vaccine mandate, is, obviously, to boost vaccination levels. The rising COVID infections due to Omicron have led to more restrictions. But how well mandatory vaccine rules work has been called into question, mainly because of the level of opposition they face. For example, the World Health Organization (WHO) says the effect vaccine mandates have on public confidence should be considered, whether or not they prove to be effective in increasing vaccination rates. “Mandates around vaccination are an absolute last resort and only applicable when all other feasible options to improve vaccination uptake have been exhausted,” said Dr. Hans Kluge, the Europe Director of the WHO.
The benefits of a vaccine mandate for employers are reducing absenteeism from sick workers and, of course, protecting the safety and health of its workforce. Vaccinated workers are less likely to die or be hospitalized and have less severe symptoms. Because of this, some employers require their employees to get their vaccinations and booster shots through mandates, while others resort to coercive incentives.
Malveaux, the OSHA legal expert, said many companies are having difficult conversations about vaccine mandates right now. “It’s gut-check time for employers,” he said. “Companies are having discussions not only on the legal context but also on the cultural level. The important part is not to avoid it and have the conversations and ask what your tolerance of risk is, what you value in terms of employee autonomy versus safety.”
A mandate can also exacerbate staffing problems for companies that already have a shrinking pool of job applicants to choose from. A recent survey by Qualtrics, a management software provider, revealed that 44 percent of employees would consider leaving a job if forced to get a vaccine, and 23 percent would “strongly consider” leaving.
Are these employees just bluffing? It’s hard to say. Some evidence suggests workers may say they’ll quit over a mandate but won’t follow through with it. For example, Houston Methodist Hospital required 25,000 employees to get a vaccine by June 7, 2021, and before the mandate, 15 percent of workers were unvaccinated. By late July, the unvaccinated workers dropped to two percent. A total of 153 workers were fired or quit because of the mandate, 285 were granted religious or medical exemptions, and 332 were allowed to defer it. This doesn’t seem like a lot, but what if one of those 153 workers was a star employee? And how easy was it to refill those positions?
Even without a federal vaccine mandate, OSHA could still use its so-called general duty clause to penalize employers for COVID-related violations; the agency has already been doing so throughout the pandemic. Many of these violations are being contested in the court system, but challenging an OSHA violation is a costly and time-consuming process, especially now as COVID-related claims are piling up. Employers also have to think about retaliation lawsuits.
OSHA’s vaccine rule may be dead for now, but it could come back in a different form soon. In the meantime, employers would be wise to check for local and state laws regarding vaccine mandates. Vaccinations and vaccine mandates are among the most contentious public policy topics today, and employers are getting caught in the middle. No matter what they seem to do, they face anger from one side or both sides of the political spectrum. In the months ahead, employers will have to make tough decisions on whether to keep vaccine mandates or not. It would’ve been easier if the OSHA rule went into effect because then they could’ve just blamed it on federal regulation.
Now, the ball is in employers’ courts unless state or local regulations force their hands. A fully vaccinated workforce is a safer and healthier workforce, leading to less absenteeism and likely lower healthcare costs. But mandates can potentially anger employees during a time when staffing shortages are already acute. It’s a political hot potato that has jumped into the workplace. If Malveaux is right and OSHA re-introduces a vaccine mandate later this year, employers may actually be relieved they’re not the ones that have to make the decision.