Does Supreme Court’s decision on employee vaccine mandates affect colleges?

The executive order on federally contracted workers is still in limbo, leaving institutions with no clearer picture on vaccinations.
By: | January 14, 2022
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The U.S. Supreme Court on Thursday blocked the Biden Administration’s mandate that large businesses with 100 or more employees require their workers to be vaccinated, tested or masked against COVID-19. But the decision does not yet impact colleges and universities who have workers tied to federal contacts or where there might be mandates in place by state and local municipalities.

Despite the 6-3 ruling from the Court striking down the Occupational and Safety Hazard Association (OSHA) rule, Biden’s executive order (14042) regarding contracted workers, which had a Jan. 18 deadline, is still in limbo. There are lawsuits working their way through the courts in multiple states and the government is not currently enforcing it, leaving still a lot of questions for institutions on how to proceed.

“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,” Biden said in a statement. “The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy.”

The decision by the Supreme Court may in the future impact the decision on federally contracted workers – the Court in fact upheld that many healthcare workers could be subject to a vaccine mandate – although the focus was squarely on OSHA’s role on Thursday.

“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,” court justices wrote. “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 Administration’s order on federal contracts, which was issued in early September, impacted institutions throughout the United States, especially those with heavy ties to research. The mandates forced many universities into positions of having to accept them and order enforcement of those employees. However, in early December, the Office of Management and Budget indicated it would take no action on noncompliance because of pending litigation in several states.

According to the original Safer Federal Workforce Task Force guidance and updated by OMB, “contractors must ensure that covered employees are fully vaccinated no later than January 18, 2022. A covered employee is any full-time or part-time employee … working on or in connection with a covered contract or working at a covered … workplace, including employees … who are not themselves working on or in connection with a covered contract.”

It is unclear how the delays on the executive order will affect or change strategies at institutions, many of which are relying on safety measures, mitigation and further protection for faculty and staff who are both vaccinated and unvaccinated. Some universities had paused mandates over the injunction from the courts and instead have had to simply encourage employees to get vaccinated.

Private colleges are still free to mandate vaccinations, provided their states don’t prohibit them from doing so and until such time as the courts intervene. For public universities, there is still a lot of gray area, especially in states where there has been pushback.

“When the OSHA mandate came down, colleges and universities were grappling with a lack of clarity around what it would mean for institutions, especially in states where they had prescriptions against vaccine mandates,” said Lynn Pasquerella, president of the American Association of Colleges and Universities. “So now know I think that this will be played out in state courts and local courts.”

As omicron surges in every states, some colleges and universities have delayed their starts and/or have headed to remote learning. For those that have opened already, the hope is that omicron may be less severe than the delta variant, but hospitalizations are still up 82% over the past two weeks. OSHA has said without the mandate, there could be an additional 6,500 deaths and a quarter million people needing hospital care. Thursday’s Supreme Court decision did not sit well with liberal justices.

“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,” they wrote. “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. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

One group that also was frustrated by the decision, even as justices approved the mandate for health care workers, was the American Medical Association.

“In the face of a continually evolving COVID-19 pandemic that poses a serious danger to the health of our nation, the Supreme Court today halted one of the most effective tools in the fight against further transmission and death from this aggressive virus,” President Gerald Harmon said. “Workplace transmission has been a major factor in the spread of COVID-19.”