Biden Drops Vaccine Mandate For Private Employers After Supreme Court Rules Against It

Source: Forbes

Date: 1/25/2022

The Biden Administration is dropping its emergency rule that required all large private employers to require Covid-19 vaccines or regular tests, it announced Tuesday, after the Supreme Court blocked the policy and ruled the federal government had exceeded its authority in imposing it.

Key Facts

The vaccine-or-test rule will be withdrawn Wednesday when it’s published in the Federal Register, the Department of Labor said Tuesday.

The Occupational Safety and Health Administration (OSHA) decided to drop the policy “after evaluating the [Supreme] Court’s decision,” the Labor Department said.

The agency is “prioritizing its resources” on finalizing its vaccine mandate for healthcare workers, which the Supreme Court upheld in a 5-4 ruling earlier this month, OSHA said in a statement.

The administration asked an appeals court to dismiss the case challenging the rule, saying it’s now moot because the policy is being dropped anyway.

OSHA said Tuesday it’s still considering moving forward with imposing a vaccine policy through the agency’s normal rulemaking process, rather than an emergency one that’s subject to less scrutiny.

Crucial Quote

“Notwithstanding the withdrawal of the Vaccination and Testing ETS, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace,” the Department of Labor said in its document withdrawing the rule.

What We Don’t Know

Whether the Biden Administration will try to revive the vaccine-or-test policy through the normal rulemaking process, and whether it will hold up in the court system if it does. A Labor Department spokesperson told USA Today the department “has made no determinations about when or if” it will come out with a new rule, which could be more targeted toward certain industries or workplaces to stand a better chance of holding up in court. Unlike emergency orders like the one that was withdrawn, rules imposed through the normal process are subject to a higher level of scrutiny through steps like gathering research, accepting public comments and performing a risk assessment. But former OSHA administrator David Michaels told the New York Times Tuesday it’s still possible the permanent rule could be struck down in court.

What To Watch For

How private employers no longer subject to the OSHA rule will react. Businesses have responded to the Supreme Court’s ruling against the mandate in a variety of ways, with some major employers like Starbucks dropping their vaccine policies as a result while others like Carhartt have doubled down on keeping their mandates in place. A survey conducted by Gartner Inc. last week found a 35% plurality of employers planned to keep their vaccine policies in place, while 29% will “wait and see” and 14% will at least keep Covid-19 testing requirements. Only 4% had already resolved to drop their policies entirely, but 12% said they’re less likely to have a vaccine mandate in place and 5% are less likely to require testing.

Key Background

The Biden Administration’s vaccine-or-test rule applied to all private employers with 100 or more employees, and it took effect in early January before the Supreme Court ruled against it 6-3 on January 13. The court ruled the executive branch “lacked authority” to impose the mandate, and said it should have been left up to Congress. The justices also said the government overstepped its authority by requiring vaccinations because it went beyond the scope of “workplace conduct,” and the rule was a “significant encroachment” into employees’ lives and health. The court’s ruling was just a temporary order that blocked the policy as the litigation against it continued to play out in court, and an appeals court would have still considered the rule if the Biden Administration hadn’t withdrawn it.

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