Episode 38: Does the latest Supreme Court ruling halt all vaccine requirements? Not by a long shot.

What should employers know about federal COVID-19 vaccine and testing mandates, after the January 13 Supreme Court ruling? Recorded on January 14, legal expert Ellen McCann walks HR listeners through the current status of the three federal mandates and what employers should do now to ensure a safe workplace.

• Background: The three federal mandates. They are (1) the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) or private employer mandate, (2) the Centers for Medicare & Medicaid Services (CMS) or health care worker mandate, and (3) the federal contractor mandate. All three have been tied up in litigation. On January 13, the Supreme Court weighed in on the private employer and health care worker mandates. [1:19]
• What does the Supreme Court ruling mean for the private employer mandate? For now the ETS is paused, which means OSHA cannot enforce it. It is not actually struck down, although the Supreme Court's reasoning suggests that it may eventually be declared unconstitutional. [3:27]
• What does this mean for employers? Employers who are only subject to the ETS have a little bit of breathing room as OSHA cannot enforce this mandate for now. The Supreme Court ruling does not prevent employers from instituting their own vaccine or test requirements. Employers should work with their legal counsel to see if they are subject to any state or local laws requiring or preventing implementation of their own program to keep employees safe at work. [5:25]
• What happened with the health care worker mandate?The Supreme Court lifted the stay on this mandate, meaning most health care workers are now required to get vaccinated before coming to their workplace. The deadlines have been moved for workers in states where the healthcare mandate had previously been stayed (Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming). In the states where there had been a stay, workers now need their first shot by February 13 and their second shot by March 15. Deadlines for workers in Texas, where a lawsuit against the mandate was dismissed on January 19, have not yet been announced. Although there is no option to offer testing instead, employers must consider valid religious and medical exemption requests. Workers in the remaining states must receive their first shot by January 27, 2022, and their second shot by February 28, 2022. All health care employers will want to begin working with counsel to develop a vaccination policy if they haven't done so already. [8:44]
• What can employers do to handle the complexity of this new HR burden? The pandemic in general and the vaccine mandate have created a record level of complexity for HR teams. Technology solutions like Unum Vaccine Verifier™ can help. Unum Vaccine Verifier™ is designed to address the most complex aspects of vaccine-or-test mandates in that it not only provides a way to track vaccine status and testing compliance, it helps guide employers through the sensitive process of managing exemption requests. [10:31]
• Where does the federal contractor mandate stand? This mandate was stayed earlier in lower courts, so employers will need to wait and see whether it ever takes effect. But again, the stay doesn't stop employers from adopting their own policies to protect their employees at work. Unum Vaccine Verifier and other technology solutions are available to help organize and enforce whatever policies employers have, while keeping all documentation in one secure place. [13:47]
• Where should employers focus in the coming weeks, now that the Supreme Court has ruled? Sit down with your legal counsel and senior leaders and decide how you want to show up for your employees. What's your corporate philosophy and culture about keeping your workplace safe and helping employees feel comfortable coming back to the work site, if that's your goal? Also, as we saw on January 13, rules can change in a minute, so use your legal counsel to help you stay up to date and make sure they are on board with any policy you adopt. [14:55]