It’s been a chaotic, topsy-turvy couple of years for NJ business owners as well as business owners across the nation. One of the biggest recent concerns for the business community was the Biden administration’s announcement of a vaccine mandate back in September of 2020.
As was to be expected, this executive order made its way to the Supreme Court of the United States (SCOTUS). We’ve been following this mandate when it was announced, halted by the 5th Circuit, and then allowed to continue by the 6th circuit.
Now, SCOTUS has just made their ruling on the Biden mandate, and I’ll discuss the specifics of the two rulings that took place this Thursday.
Forgive me if I cover material that’s already been discussed. Doing this will be necessary to limit readers’ need to dance between tabs to figure out what happened and when it occurred.
Let’s get into what, I hope, will be the last article I’m writing for you on this topic.
SCOTUS has ruled against Biden’s vaccine mandate for companies with more than 100 employees. While many large companies are proceeding regardless, many smaller companies can breathe a sigh of relief that there isn’t another obstacle to returning to full operations.
In their 6-3 majority opinion, the court wrote, “Covid-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”
“This is no ‘everyday exercise of federal power,'” they added. “It is instead a significant encroachment on the lives – and health – of a vast number of employees.”
In contrast to their ruling against the mandate for private businesses, SCOTUS has ruled 5-4 in favor of the Biden administration’s rule that employees at healthcare facilities working with Medicare or Medicaid must be fully vaccinated, covering more than 17 million workers.
The two “swing” justices, Chief Justice John Roberts and Justice Brett Kavanaugh, switched positions from their rejection of the OSHA mandate for private businesses to support the mandate as it applies to those working in facilities that deal with Medicare & Medicaid patients and funds.
This stat, 17 million workers, I have seen stated as 10 million, 10.7 million, and 20 million, depending on the publication or organization. Whatever the exact number, suffice it to say that there will be a substantial portion of the population that works in the healthcare industry that will be required to get vaccines due to the mandate recently approved by SCOTUS.
Any clinics, medical practices, or related fields that may even occasionally deal with Medicare & Medicaid should closely look into whether they fall into this category.
In an interesting turn of events, SCOTUS chose not to take up the separate mandate that applies to federal contractors. Currently, the mandate for federal contractors remains on hold, as was determined by a lower court.
That said, it’s not quite as simple as that. In layman’s terms, this mandate has already been de facto jammed through, as the businesses and government agencies to which it applied are far less vulnerable to public opinion or pushback on the part of their employees.
One example I’ll give is that of an active-duty soldier. How much power does that soldier have to state that they’re refusing the vaccine? They’re far more vulnerable to the whims of their commanding officers than a factory employee at a Kellogs plant, for example.
I think it’s safe to say that while this aspect of the federal mandate is still in legal limbo, many of those who would find themselves falling under this category are going to be “strongly persuaded” to just get vaccinated to avoid any potential problems.
While Biden and his administration have expressed disappointment in SCOTUS’ ruling, they’re continuing to encourage large private employers to proceed with vaccination requirements as though SCOTUS has approved the mandate.
Quoting the President, “As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated.”
Many large companies, completely within their legal rights to do so, have stated that employees must get vaccinated, be subjected to regular testing, or pay some form of consequences should the employees fail to abide by either option.
In a recent article in Barron’s, the internal policies of several well-known corporate giants in the American business community were detailed.
- Wells Fargo has implemented a policy closely following the Biden administration’s mandate. They’re “strongly recommending” that employees get vaccinated.
- Citi has stated outright that all employees need to be vaccinated by the end of the month, or they will be fired.
- Delta Airlines has levied a monthly $200 fee on any employees who decide not to get vaccinated, all but forcing their employees to determine whether remaining unvaccinated is worth $2400 each year, quite a substantial amount.
- Companies like Ford and General Motors gave tepid, non-committal responses that, paraphrased, said that they believe vaccines help protect workers and are essential to bringing the American workforce back to full capacity. No firm positions were stated, however.
Granted, this is a speculative statement, but I suggest that many businesses don’t want to stick their neck out while defending their employees’ rights and expose themselves to any form of federal retribution that might result.
During a period in which even the most fiscally solvent companies have been lining up to see what stimulus programs they might be able to take advantage of, it’s a poor strategic choice to be an outlier. No CEO wants to be the thorn in the side of the Executive Branch’s attempts to promote a particular policy, and then soon after be asking for millions of dollars in whatever future stimulus might be available.
While it goes without saying that small businesses have far less of a voice on the national level, their biggest representatives are claiming victory and relief on the part of the countless businesses they represent.
“The Supreme Court’s decision to stay OSHA’s onerous and unprecedented [Testing Emergency Temporary Standard] is a significant victory for employers,” said David French, the National Retail Federation’s senior vice president of government relations. The NRF was one of the plaintiffs in the case against the Biden administration in the case just decided by SCOTUS.
The National Federation of Independent Businesses, a lobby group that was among plaintiffs fighting against the Biden mandate, had suggested that it would bury small-business owners with new compliance costs, make it harder to fill positions and lead to lost profits and lost sales.
“Today’s decision is a welcome relief for America’s small businesses, who are still trying to get their business back on track since the beginning of the pandemic,” said Karen Harned, executive director of the group’s legal arm.” Harned continued, “As small businesses try to recover after almost two years of significant business disruptions, the last thing they need is a mandate that would cause more business challenges.”
While I hope that this is really the conclusion, and I’m not back in a couple of months from now writing about how mandate debates are making their way through Congress, I think business owners can rest easy for the time being.
As I said, if you have a business that is in any way considered a federal contractor or associated with Medicare & Medicaid, you’d be wise to look into this more thoroughly. For the rest of business owners, you may have just gotten a break that will make getting back to normal a bit easier. Well, except for the millions of cases of COVID, but that’s a story for another day.