While the Supreme Court considers legal challenges, companies must monitor employee vaccination status and wear masks indoors without requiring vaccinations
The Labor Department gave employers an additional month in December to require that unvaccinated workers take weekly COVID-19 tests. This will be effective from February 9.
The rule covers about 84 million employees. This does not apply to businesses where employees do not report to a central workplace. It also does not apply to those whose employees work at home or outside.
Hanging on to the vaccine mandate is the possibility that the Supreme Court could halt its implementation at any time while it considers a challenge from business groups.
On Friday, the Supreme Court heard oral arguments with most of the judges questioning the administration’s authority to issue such a mandate, an indication that the court may set aside the mandate. The Justices also suggested that they may have intentionally withheld the rule.
“Every minute of uncertainty is adding to the problems small-business owners are already facing,” said Karen Harnead, executive director of the Legal Center for the National Federation of Independent Businesses.
The NFIB is one of the groups challenging the rule. Businesses are divided on mandate.
If the rule survives legal challenge, workers who didn’t get vaccinated on February 9 will have to submit to weekly testing, according to a document posted on the Labor Department’s website. If employees have taken both doses of the two-dose vaccine, they are considered fully vaccinated. In other words, according to the agency, they will still be considered vaccinated if they haven’t received a booster shot.
A department spokesman said the Labor Department’s Occupational Safety and Health Administration “will work closely with the regulated community to provide compliance support.”
Many employers, however, prefer to wait for a court decision before establishing a vaccine mandate, said Emily Dickens, head of government affairs at the Society for Human Resource Management.
About 51% of employers subject to rules surveyed by the society last month said they would not implement a vaccination policy until the legal process was completed, she said. And about 18% said they would not comply with the requirement even if the mandate was upheld.
“They are taking the risk to see what is going on with the court,” Ms Dickens said.
He said employers are concerned that the vaccine mandate will hurt morale and prompt workers to look for other jobs that are not covered by the mandate. He said employers are also concerned about the additional burden of paperwork.
The rule is being issued as an emergency temporary standard, meaning it could be in place for up to six months. After that, it will have to go through a lengthy rule-making process before it becomes effective.
The Supreme Court is also considering challenging a separate rule from the Biden administration that requires vaccinating workers at health facilities that receive Medicaid and Medicare funding.
The Biden administration announced the requirement in November, after a months-long campaign encouraging Americans to protect themselves from Covid-19 failed to significantly increase the number of people.
According to the Centers for Disease Control and Prevention, about 73% of American adults were fully vaccinated as of January 9. About 39% of them have also received a booster shot.
Write David Harrison at [email protected]