COVID-19

Companies Face a Tangle of State Policies Following Supreme Court Ruling Against Federal Vaccine Mandate

Mike Segar | Reuters
  • Last week's Supreme Court decision to block a federal mandate that would require businesses with 100 or more employees to make workers get the shot or weekly tests, means companies are left figuring out a solution on their own.
  • The high court did allow the Department of Health and Human Services to continue the federal rule that requires Covid-19 shots for workers at healthcare settings that treat patients covered by Medicare and Medicaid.
  • As of Jan. 12, 14 states prohibit any sort of Covid-19 vaccine mandate to be in place.

Companies have been grappling with the decision of whether to require Covid-19 vaccines for employees for over a year. Last week's Supreme Court decision to block a federal mandate that would require businesses with 100 or more employees to make workers get the shot or weekly tests, leaves companies to figure out a solution on their own.

The rulings came three days after the Occupational Safety and Health Administration's emergency measure for businesses started to take effect, and four months after President Joe Biden introduced his six-point plan for increasing the number of Americans vaccinated against the virus. The most discussed piece of his plan was the mandate directing companies to require the Covid-19 vaccine or test employees weekly to make sure they weren't sick.

The Supreme Court's decision now means "companies have to take it upon themselves to have safe practices in the workplace," because the federal government is not allowed to mandate it, says Los Angeles-based employment and civil rights trial attorney V. James DeSimone. Had the Court allowed the mandate to stand, it would have affected about 84 million employees — more than half the labor force.

And while the high court ruled against a vaccine mandate for businesses, it did allow the Department of Health and Human Services to continue the federal rule that requires Covid-19 shots for workers at healthcare settings that treat patients covered by Medicare and Medicaid.

"After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm," the majority opinion read.

Conflicting state rules

Blocking the federal vaccine mandate for businesses now puts companies at the mercy of conflicting state policies as they look to protect workers from the surging omicron variant. As of Jan. 12, 14 states prohibit any sort of Covid-19 vaccine mandate to be in place, according to data from the Kaiser Family Foundation.

"Companies have to do everything necessary to make their workplaces safe for employees," says DeSimone. "The Supreme Court decision now puts more of the onus on private companies to do just that." And private employers, he says, "absolutely have the right to make being vaccinated a condition of employment."  

Before the Supreme Court decision was even announced, financial giants such as Citigroup and JPMorgan Chase issued their own rules regarding vaccines and employment. Citigroup told employees they need to be fully vaccinated by Jan. 14. Those who didn't comply would be put on unpaid leave and terminated.

JPMorgan Chase CEO Jamie Dimon, who has been advocating for workers to return to the office throughout the pandemic, told CNBC that employees at its New York City headquarters can't come into the office without being vaccinated. "To go to the office you have to be vaxxed and if you aren't going to get vaxxed you won't be able to work in that office," Dimon said last week. "And we're not going to pay you not to work in the office."

Other companies say the "no jab, no job" approach is not one they want to endorse. Steve Pemberton, chief human resources officer at Workhuman, a performance recognition software company, says employees are required to be fully vaccinated to work in the office. However, terminating workers who remain unvaccinated is something "we will never do," he says.

"One of the ways we were able to avoid that escalated conversation was because we began with a process of talking to our employees first," Pemberton says. "We surveyed people to find out where they were with vaccinations and if their jobs could be done remotely. We're called Workhuman for a reason so we don't want to be in a position of having to terminate people for not being vaccinated."

And because of the collaborative nature of the conversations with employees, Pemberton said the company never "had to get to that point."

Still, he imagines that more companies will feel emboldened to terminate workers who refuse to be vaccinated even without the federal mandate.

"A lot of the thinking initially was that companies wouldn't draw that line in the sand because of the labor shortage we're experiencing," he says. "But I think that as time goes on, and we see that the vaccines are preventing the worst outcomes of the virus, employees are going to to want to return to places that are safe."

To join the CNBC Workforce Executive Council, apply at cnbccouncils.com/wec.

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