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Supreme Court Ices Vax Mandate for Large Companies

Jan. 13, 2022
Decision provides relief for thousands of HVACR and other home service businesses. Court sustains vaccine mandate for medical facilities that take Medicare or Medicaid payments.

Jan. 12, 2022 - The US Supreme Court today struck down the Biden administration's pending rule mandating  COVID-19 vaccinations or a weekly testing alternative for companies with more than 100 employees. Those declining to be vaccinated would have been required to wear masks and submit to weekly testing. The vax-or-test mandate was announced in November, challenged and overturned, but then allowed to go forward once again. The rule  had just gone into effect on Monday, Jan. 10.

The decision brings relief to thousands of HVACR and other home service businesses who would have been forced to become a kind of "vaccine police," and devote resources to enforcement and paperwork. It is also a victory for proponents of individual liberty. One contracting group expressing satisfaction with the decision was Associated Builders and Contractors, with offices located less than one mile from the Supreme Court building.

“ABC is pleased that the Supreme Court blocked OSHA’s COVID-19 Vaccination and Testing ETS,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “ABC is proud to have played an important role in preventing OSHA from causing irreparable harm to the construction industry.

"This is a big win in removing compliance hurdles for the construction industry, which is facing multiple economic challenges, including a workforce shortage of 430,000, rising materials prices  and supply chain issues. ABC continues to support vaccinations and encourages members to use its COVID-19 vaccination toolkit to keep workers safe on construction jobsites.”

Amanda Jacobs, a principal with Jacobs Heating & AC, Portland, Ore., heard the news while attending the Business Development Resources SPARK conference in San Antonio. The company employs 110, and there are plans to hire more before spring; about 75 percent of the company’s employees have been vaccinated.

Jacobs told Contracting Business that before the mandate, the company had offered incentives to employees to get vaccinated, such as time off and recovery time.

“When the mandate was issued, we took a look at the guidelines and decided to [offer] testing. We don’t want to lose those unvaccinated employees for whatever their reason might be [for not getting vaccinated].”  She said the plan was put on hold as they awaited the Supreme Court’s decision.  

Jacobs said the company operates under Oregon OSHA, which duplicates federal OSHA requirements.

“We did the research on what it would take to follow the mandate. The federal mandate was for any employer on November 5 with 100 employees, regardless of location. “So if we had offices in five locations and the head count total was 100, you qualified [to follow the mandate].”

She said the company was relieved to hear of the verdict because  the business application of the mandate would have been difficult to implement, since the company was going to offer and pay for on-site testing, have employees take their tests at the office, and the company record the results, “even though we’re not a medical practice. I don’t want to swab people’s noses or watch them swab their noses. Our fear was that an unvaccinated employee would not pay for a test; and, tests are currently hard to obtain.

“It’s tough, because I’m vaccinated, and we’re encouraging vaccinations, because we think it will make a healthier environment for everyone.”

On Nov. 9, ABC and its Alabama chapter filed a petition for review with the US Court of Appeals for the 11th Circuit against the OSHA ETS. ABC filed an emergency appeal to the Supreme Court to stay the ETS on Dec. 20.

Deciding for the plaintiffs in National Federation of Independent Business v. Department of Labor, the court's conservative majority (Clarence Thomas, John Roberts, Brett Kavanaugh, Samuel Alito, Neil Gorsuch and Amy Coney Barrett) wrote: 

"Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category."

The court's three liberal, dissenting justices (Stephen Breyer, Sonia Sotomayor and Elana Kagan) wrote:

"In the face of a still-raging pandemic, this court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others."

The court, in a 5-4 decision let stand the rule's vaccine requirement for health care workers who treat Medicare and Medicaid patients:

“We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. "So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.”

About the Author

Terry McIver | Content Director - CB

A career publishing professional, Terence 'Terry' McIver has served three diverse industry publications in varying degrees of responsibility since 1987, and worked in marketing communications for a major U.S. corporation.He joined the staff of Contracting Business magazine in April 2005.

As director of content for Contracting Business, he produces daily content and feature articles for CB's 38,000 print subscribers and many more Internet visitors. He has written hundreds, if not two or three, pieces of news, features and contractor profile articles for CB's audience of quality HVACR contractors. He can also be found covering HVACR industry events or visiting with manufacturers and contractors. He also has significant experience in trade show planning.