A healthcare worker prepares a syringe with the Moderna COVID-19 vaccine at a pop-up vaccination site operated by SOMOS Community Care during the COVID-19 pandemic in Manhattan in New York City, January 29, 2021.
Mike Segar | Reuters
The Supreme Court ruling that barred the Biden administration’s Covid vaccine mandate for employees of large employers will not prevent U.S. companies from requiring vaccinations for their workers.
President Joe Biden vowed Thursday to push for companies to do just that in order to save American lives and prevent even more financial fallout from the two-year coronavirus pandemic.
“The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy,” Biden said in a statement.
“I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities,” Biden said.
The Supreme Court earlier Thursday blocked a rule issued in the fall by the Occupational Safety and Health Administration that would have required companies with at least 100 employees to have workers either be vaccinated against Covid-19 or wear masks on the job and test negative for the virus at least once per week.
The high court in its decision said that while OSHA had power granted by Congress to regulate occupational dangers, the agency did not have the authorization “to regular public health more broadly.”
Kathryn Bakich, a senior vice president who focuses on workplace compliance issues for the employee benefits consulting firm Segal said, “Although the Supreme Court stayed the federal government’s OSHA rule, the ruling has no bearing on whether an individual employer can impose a vaccine mandate on its workforce.”
Bakich noted that the high court on the same day allowed a Biden administration mandate for vaccinations of millions of health-care workers at employers who treat patients covered by the massive federal Medicare and Medicaid health programs.
“Employers shouldn’t read into the decision a lack of support for vaccines, workplace vaccine requirements, or meaningful public health measures,” Bakich said.
The National Retail Foundation praised the ruling blocking the mandate on large companies as a “significant victory” for employers.
The NRF noted in a statement that it had joined with more than two dozen other trade associations to make oral arguments this week opposing the mandate, which it called “onerous and unprecedented.”
But the retail foundation also said it “has maintained a strong and consistent position related to the importance of vaccines in helping to overcome this pandemic.”
And, anticipating Biden’s later statement on the ruling, the NRF said it “urges the Biden Administration to discard this unlawful mandate and instead work with employers, employees and public health experts on practical ways to increase vaccination rates and mitigate the spread of the virus in 2022.”
David Gordon, a partner at the New York law firm Mitchell Silberberg & Knupp, said that as a result of the Supreme Court ruling, “employers will now be free to set their own requirements, subject to applicable state and local laws.”
Gordon noted that, “This ruling makes no difference for New York City employers and employers in other jurisdictions that will require that all employees be vaccinated.”
“Employers in those locations will still be subject to applicable vaccine mandates,” he said.
But Gordon also said the ruling will allow a large employer to make a decision on vaccinations that reflects competition in the job market for workers.
“It’s no longer an even playing field among large employers in terms of recruitment,” Gordon said. “Now, if a large employer believes that it would be advantageous not to require employees to be vaccinated, it will be free not to adopt a vaccine mandate if permissible where they are located.”
Starbucks last month said that all American workers of the giant coffee shop chain must be vaccinated by Feb. 9 or be tested.
Previously, large employers including American Express, Amtrak, Citigroup, General Electric, Google, Jeffries, NBCUniversal, Southwest Airlines, Tyson Foods and United Airlines had imposed vaccine mandates on employees, or at least on workers who were returning to physical offices.
Disclosure: NBCUniversal is the parent company of CNBC.