SCOTUS strikes down OSHA’s COVID vaccine/testing mandate

Discussion
Photo: RetailWire
Jan 14, 2022

The U.S. The Supreme Court of the United States, by a six to three margin, has ruled that the Occupational Safety and Health Administration (OSHA) cannot enforce a mandate that would require employers with at least 100 employees to require its workers to either be vaccinated against COVID-19 or undergo regular testing for the virus.

The decision was based on the determination that COVID does not meet the “occupational hazard” criteria set out by Congress in giving OSHA its protective authority in the workplace.

“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,” the court’s decision reads. “Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

President Joe Biden expressed disappointment with the decision. “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,” he said.

Retailers, who had been lobbying the federal government to push back deadlines for mandates fearing it would negatively affect their ability to staff jobs, expressed support for the decision.

David French, senior vice president of government relations at the National Retail Federation, called the court’s decision “a significant victory for employers.”

Brian Dodge, president of the Retail Industry Leaders Association, said its members are concerned about implementation of the mandate and that it is focused on “working with our members to ensure they have the information and tools they need to safely operate, manage their workforce, and meet the needs of their customers.”

FMI also voiced support for the court’s decision. “We are pleased the Supreme Court recognized the challenges OSHA’s rule would have imposed on food retailers and manufacturers, our employees and, ultimately, American consumers,” said Leslie Sarason, president and CEO of the association.

“The ruling is a great relief for our industry as it staves off a burdensome mandate that would have created further disruptions and impaired our members’ ability to properly serve the needs of their communities,” said Greg Ferrara, NGA president and CEO.

DISCUSSION QUESTIONS: Do you think the Supreme Court’s decision will make it easier or harder on retailers trying to decide about COVID-19 mandates and regular testing for workers? Do you approve of the actions of companies that require workers who are unvaccinated without medical cause to pay for tests or increase their health insurance premiums?

Please practice The RetailWire Golden Rule when submitting your comments.
Braintrust
"While I respect the court and accept its decision – it’s a disappointing one. The virus does not care about what the court thinks is right."
"Once again, government has shirked its responsibilities and left businesses — especially consumer facing organizations like retail — to deal with a messy situation."
"Had the court ruled the opposite way it would have made it easier for retailers to require that all employees get vaccinated."

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27 Comments on "SCOTUS strikes down OSHA’s COVID vaccine/testing mandate"


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Mark Ryski
BrainTrust

While I respect the court and accept its decision – it’s a disappointing one. The virus does not care about what the court thinks is right. While the decision allows businesses to keep operating (which is good), it also puts pressure on each business to create and enforce its own vaccination policy. Ultimately the smartest companies, like Delta, are doing it anyway and many others are and will too. The science is clear: the unvaccinated are creating the stress on the medical system. If this were leprosy, there would be no arguments. At the very end of it all, Darwin will sort out who’s who.

Al McClain
Staff

It is disappointing indeed, Mark. It’s also really disappointing the we as a society have been unable to pull together and collectively do the right things, by getting vaccinated, wearing masks, and distancing. Two years ago, I could not have imagined that so many people would die and a very significant minority of us would brush it off so cavalierly.

Ryan Mathews
BrainTrust

Al, as my father used to say. You can have the green light at an intersection and walk across the street, but if a car is barreling down at you at 100 miles per hour and runs the red light – you will have been in the right, okay, the (very) dead right. I’m with you. Five years ago if you told me that hundreds of thousands of Americans would die because of something that was essentially avoidable I might have told you to stop ingesting whatever it was you were eating, drinking, smoking, or popping. Today you could tell me this will never end and I might believe you. What’s next? Deciding smallpox, polio, measles, etc. aren’t really diseases, or that we have a right to infect everyone around us just because we feel like it? It’s a sad commentary, written in an ocean of needlessly shed blood.

Mohamed Amer, PhD
BrainTrust

This widespread cavalier attitude is borne out of distrust of government, irrespective of one’s political stripe. The cohesive bonds that held American society together are torn asunder from within and without by political opportunists and long-time enemies of the U.S. in a bizarre and frightening death embrace.

Paula Rosenblum
BrainTrust

I really have no words for the short-sightedness of this decision. I reminds me of this cartoon of a post-apocalyptic world, where some men are sitting around a fire saying “but for one brief moment, there were huge profit opportunities.”

This is just wrong.

Gary Sankary
BrainTrust

Strictly speaking it does make it easier for retailers to make decisions about mandates and testing, only because they can now choose not to do so. I suspect this will open the door legal action by individual employees against employers who decide to continue to mandate. We shall see.

Bob Amster
BrainTrust

This is not simple. We agree that employees or employee unions could conceivably sue their employers if they feel that corporate-mandated testing and masking is an overreach. If the population in general was more concerned about others around them and, on their own, “did the right thing,” there would be no lawsuits, less contagion, and on, and on. And when I wake up from my idealistic dream…

Neil Saunders
BrainTrust

I am not anti-vaccination – indeed, I have had two shots of Pfizer injected into my arm! However I completely agree with the Supreme Court’s decision. Regardless of the merits of vaccination or the intention of the mandate, this was government overreach on a grand scale that represented egregious interference in the personal decisions of individuals and in the policies of companies. That said, each company is entitled to set its own policies and standards. Some may choose to increase insurance for the unvaccinated and/or reduce benefits like sick time – which, for example, IKEA has done. Much, of course, depends on the progression of the latest variant. If, as seems to be happening in the UK, it represents a move from pandemic to endemic we can hopefully start to put all of this contentious debate behind us.

Ryan Mathews
BrainTrust
Neil, with all due respect, we could have been over this whole pandemic a year ago if we – or a fairly consistent 40 percent of us at least – hadn’t insisted in confusing personal freedom and public health. Yes, Americans have the right to make individual choices, but not when those choices cost other people their lives and/or livelihoods. Here’s a simple example. I have a Constitutional right to climb down to the bottom of the Grand Canyon and yell, “Fire! Fire! Run!” all I want, but I don’t have the right to do the very same thing in a crowded theater. Or I have “the right” to sit in my living room and chug a quart of over-proof vodka, but I don’t have the right to then get up and drive. There is – agree or disagree with it – a firm overarching principle in American law that uses public safety/health as a pretty clear metric for what behavior is allowed and what behavior isn’t. So, mandating vaccinations in a pandemic isn’t any… Read more »
Neil Saunders
BrainTrust
Ryan, with equal respect, I completely disagree. First, you cannot say that the pandemic would be over a year ago. No one, including scientists, knows that for certain as we are still learning about the virus and there is a lot we still do not know. Indeed, even in countries like Israel and the UK, where vaccination rates are very high by international standards, the pandemic has not been brought under control and is presenting numerous challenges. Second, vaccinations are very valuable and and they have been excellent at preventing serious illness and death, especially among vulnerable people. However, they do not completely prevent people from catching and spreading Covid — especially with the latest variant. That’s one of the reasons why things like vaccine passports are pretty useless and unreasonable. Third, there is a fundamental difference between you shouting fire or chugging vodka and driving: those are deliberate, conscious actions, by you, which have the potential to cause harm to others and violate their rights. In the case of this pandemic it is the… Read more »
Paula Rosenblum
BrainTrust

Time to get that booster, Neil. We need you around!

Ananda Chakravarty
BrainTrust

Retailers will continue to own this decision and smarter ones will mandate vaccination. Frankly, businesses where the mandate is not enforced will have greater exposure to the virus, an increase in the number of employees taking sick days, increase in concerns for unvaccinated colleagues, and decrease in morale that their business is protected from this awful disease. This is even more pronounced for front line retail workers. From a strictly business sense, this impacts productivity. However this decision should be in the hands of business leaders, not necessarily OSHA. If future variants have increased morbidity, this can become a much more real problem and maybe the federal government should intervene.

Companies should still make sure their workplaces are safe and unvaccinated employees make that a harder and costlier concern. These companies have every right to reduce their costs and push this cost to employees who don’t vaccinate. But companies subsidizing this cost will attract employees and generally have more employee support.

Steve Montgomery
BrainTrust

Had the court ruled the opposite way it would have made it easier for retailers to require that all employees get vaccinated. They could have simply stated, the government is making us do this. The court’s ruling forces each company to make a decision for its employees and to live with the consequences of its decision.

Mark Ryski
BrainTrust

Great point Steve — and, I would add, it gives retailers a more helpful way to deal with belligerent shoppers too.

Doug Garnett
BrainTrust

In this case, it makes the retailer’s job harder. An important role in government regulation is establishing the things we need as a society as our way forward – stepping in when purist free market ideals will fail. This was such a time and Biden’s administration was on the right track. Sadly the court is not.

Ben Ball
Guest
Just when you thought it was safe to go back in the water… 🙂 I happened across the ‘Wire this morning and saw this discussion of SCOTUS decision on vaccine mandates. I can understand your point about the “important role of government regulation,” though we may disagree on what that role entails. But in this case let’s say we agree. The branches of “government” are given distinctly different roles in the Constitution — and SCOTUS drew the toughest by a long shot. Their role to call balls and strikes prohibits them (at least in principle) from making the very judgments you allude to. That has to be done by the legislature. Congress didn’t give OSHA the powers to regulate everyday life. If they want those powers to extend to that realm they need to pass legislation that says that. All SCOTUS said was “the law doesn’t say that.” Unfortunately, some Justices cannot refrain from stating personal opinion and morality judgments when commenting on opinions of the Court. I acknowledge that is a tough ask. It’s… Read more »
Ryan Mathews
BrainTrust
Ben — so this is what it takes to rattle the bear! I agree with you — up to a point. As a general Constitutional principle (assuming one is a conservative strict constructionist at least) OSHA doesn’t – and shouldn’t – ” … have the powers to regulate everyday life.” But a pandemic isn’t “everyday life” and the fact is, without mandates, workplace safety is an issue, as we have all seen. “Life” is the first of the unalienable enumerated rights in the Declaration of Independence. While not legally binding, it is generally acknowledged as the foundational principle of American democracy. And, in a pandemic, governmental mandates – by some agency/authority/etc. are the best way to guarantee “life” to the broadest percent of the population. OSHA has clear authority to mandate that, say, employees are not exposed to toxins, carcinogens, etc. So how, in this very limited sense, is exposure to a virus any different? Hope retirement is treating you well my friend, and vice versa. Some of us still have to labor in the… Read more »
Ben Ball
Guest

I bumped your thoughtful comment because, as usual, 99% of your logic is unassailable. But here’s the “big miss”. The virus is not a direct result of, nor under the control of, the workplace. Holding companies accountable for workplace hazards they create is OSHA’s role. Period.

Thanks for the good wishes and, supply chain and contractor availability shortages notwithstanding, my plans/dreams for the farm and the woodworking venture are proceeding in fits and starts. But not to worry, I consoled myself with over 50 days in the woods this fall. A wonderful (if not constructive) diversion from my avocational obstructions.

Ryan Mathews
BrainTrust
If the President’s math is correct, two-thirds of Fortune 100 companies are against mandates, so presumably the business community feels they are counterproductive. But, especially in the case of retail companies, this may be an exercise in Fool’s Economics. If I’m highly dependent on a large labor pool having large portions of that pool down for weeks at a time really isn’t financially sound in the long run. Also, if my store is linked as a super-spreader site, it’s hard to understand how that helps me build traffic. Retailers make money when they have healthy employees serving healthy customers. If a significant percentage of one or both of those groups is sick on and off for months at a time it can’t be good for business. As to the second question – with the notable exceptions of established religious beliefs and/or some underlying medical condition that makes it dangerous to be vaccinated, I approve of companies that have a “get vaccinated or else” policy. My oldest cousin developed polio years before I was born and… Read more »
Ben Ball
Guest

In this comment I wholeheartedly agree. If employers evaluate the outcomes and determine that some workers refusing a vaccine and quitting is better than no mandate — have at it! That IS within the employer’s purview. The coin of the law has at two sides. Too bad we spend so much time trying to dance on those very thin edges.

Rachelle King
BrainTrust

At the end of the day, the companies cheering for this SCOTUS ruling are cheering for their businesses, at the expense of their employees and their customers.

Patricia Vekich Waldron
Staff

Consequences (additional insurance costs, job loss, etc) of making the decision to not get vaccinated should absolutely be felt by individuals.

Once again, government has shirked its responsibilities and left businesses — especially consumer facing organizations like retail — to deal with a messy situation.

storewanderer
Guest
7 months 2 days ago
And how do you measure what those consequences should be? Historical claims data takes time to gather before insurance costs should be increased and an arbitrary increase based on something other than hard data over time strikes me as having a great legal challenge. As the number of people getting COVID who are vaccinated is skyrocketing, the narrative continues to be it is mostly unvaccinated being hospitalized. But CDC came out this week or last week and said most going into the hospital have 4 other conditions besides COVID. So are they really all hospitalized due to not taking the vaccine or is it because they already had some other health conditions? This is why it isn’t so easy to just say you can penalize the unvaccinated. Other issue is, when we signed up for this we were not expecting to need 2 or 3 booster shots a year. This was presented as take the 2 vaccines and be done … pandemic will be over … and it didn’t go as advertised. The unvaccinated are… Read more »
Craig Sundstrom
Guest

Obviously it will make it harder to decide, since they’ll now actually have to decide (nothing is so easy as saying “I had to do it”).

As for the (SCOTUS) decision itself: while it may be disappointing (to some, and obviously not to others), it shouldn’t be a surprise … and claims notwithstanding, neither “side” seems to have the facts with them.

storewanderer
Guest
7 months 2 days ago

The Supreme Court was to determine constitutionality of the OSHA employer vaccine or test mandate.

It is about the constitution. It isn’t about how we feel about the topic….

Meanwhile if you get a COVID vaccine in in US you still have to sign the emergency use authorization forms and sign away any rights to sue the vaccine manufacturer for side effects. For some reason, the vaccine manufacturer who actually has a FDA approved vaccine, is not releasing the FDA approved vaccine in the US. Supposedly the one under the emergency use authorization is the same formulation as the one that is FDA approved … so why not just start to distribute the FDA approved one?

Employers are happy to not face potential liability for an employee saying they were forced to vaccinate then claiming side effects.

Perhaps the US government could just try to force everyone to be vaccinated or lose all government services. Also unconstitutional. They tried to make employers the “fall guy.”

Retail_to_Mfg
Guest
I agree that if SCOTUS approved the mandate, employers wouldn’t have the difficulty of creating their own plan. On a benefit side, it will allow for data to be collected on employee responses to these decisions. Many companies decided to do a wait-and-see approach and may still wait it out for others to take the risk. If a company wants to mandate, they need to be prepared for a loss of employees and customers as has been witnessed in airlines and medical fields. Draconian measures and regulations do not play well with the American public, no matter what side of the aisle. I’m going to make the assumption that most commenting to these threads are either working remotely or in distanced offices likely in larger cities that already have mandates in place. Outside of those spaces, you might be surprised by much of America not wearing masks and numbers averaging around 50-60% of employees being vaccinated. It is common knowledge that being vaccinated doesn’t mean you won’t contract COVID or won’t spread the virus, so… Read more »
Anil Patel
BrainTrust

I think the Supreme Court’s decision is right. COVID is unquestionably lethal, but it doesn’t precisely meet the ‘occasional hazard’ criterion, because there are a million other causes for people dying. However, in terms of complying with COVID standards and conducting regular testing, it is up to the retailers to determine how they are making their environment safer. It might include orders for double vaccinations, the use of masks, sanitization, or regular testing.

About the second question, workers should not be required to pay for mandatory tests. Since it’s about the safety of groups and communities, retailers should ensure collective efforts and contribute in regular tests instead of overburdening individual workers.

wpDiscuz
Braintrust
"While I respect the court and accept its decision – it’s a disappointing one. The virus does not care about what the court thinks is right."
"Once again, government has shirked its responsibilities and left businesses — especially consumer facing organizations like retail — to deal with a messy situation."