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Employers face patchwork of state policies on worker vaccination after Supreme Court order

Shyrel Ritter, a certified nursing assistant at the Hebrew Home at Riverdale, receives her coronavirus booster shot in September at her workplace in New York. (Seth Wenig/AP)
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The Supreme Court’s decision that large companies do not have to force workers to get coronavirus shots or tests leaves employers facing a patchwork of clashing state policies over their role in protecting their workforces from the surging pandemic.

The court order Thursday lands on the polarized American landscape just three days after employers with at least 100 workers — apart from the relatively few that already required vaccines or testing — put into effect vaccine verification and other aspects of the rule. That was two months after it was announced by the Labor Department’s Occupational Safety and Health Administration.

The about-face affects 84 million employees, more than half the U.S. labor force, although with about 63 percent of the U.S. population fully vaccinated, many workers are already immunized.

On Jan. 13, the Supreme Court blocked the Biden administration from enforcing a vaccination-or-testing requirement for large employers. Here’s what to know. (Video: Julie Yoon/The Washington Post)

The decision by the court’s conservative majority was a relief for some firms that had regarded the federal rule as overreaching and burdensome. Complying with the requirements “would have been infeasible in some respects and onerous in others,” said Eric Hobbs, a lawyer at Ogletree Deakins, who added that many of the companies with which the firm works will be glad to be unfettered from the federal edict.

Other employers said that, with an ideologically divided workforce, they were disappointed to be deprived of a convenient justification for requiring coronavirus shots or weekly tests.

“When you are ready to land on the beach in Normandy and at the last second you are told not to go, you have to change your course of action,” said Jim Fetherston, president of Worzalla, a longtime book-printing company in Stevens Point, Wis.

As long as coronavirus vaccines have existed, Fetherston said, he and other managers have tried to persuade the company’s 388 workers to get immunized. But he had been reluctant to require shots for fear of losing workers who oppose the idea at a time when the pandemic has spurred renewed interest in reading and a boom in book-printing orders.

About half of Worzalla’s employees were eager to get the vaccines, he said. Another 15 percent were cajoled to do so after one-on-one conversations. Fetherston said he was hoping the OSHA rule would bring the cohort of his vaccinated workers to perhaps 90 percent, with the rest starting to get weekly tests for the virus.

In recent weeks, Worzalla spent $20,000 buying a first round of test kits. The company set up record-keeping systems for vaccines and tests alike, to be able to avoid federal penalties in case OSHA inspectors asked to review the company records.

“We’ve tried like crazy to reason with people and explain why the vaccine is a good idea,” Fetherston said, adding that, now, “we’re at a bit of a disappointment that we don’t have that edict to point to.”

The rule the court halted was one of the Biden administration’s most ambitious attempts to increase vaccination rates and took effect as the omicron variant drives cases to record levels.

For the Labor Department, the rule — technically, an emergency temporary standard, to be followed by a permanent version after the end of public comments — was one of the most high-profile public policy moves in decades. Thursday’s order does not permanently kill the rule. Instead, the justices blocked it while they consider litigation against OSHA’s requirement.

Still, employers, workplace safety advocates, lawyers and labor specialists construed the justices’ preliminary decision as predicting the final outcome.

At the same time, the high court allowed the Department of Health and Human Services to continue another federal rule that requires coronavirus vaccines of workers at health-care settings that treat patients covered by Medicare and Medicaid. That rule affects an estimated 10 million employees — fewer than the 17 million the Biden administration had said at first.

One of the main consequences of the court’s decision will be on businesses that operate in more than one state.

“Having this decided at the state or local level … really does make this very messy, and there will be less people who are protected at work,” said Lorraine Martin, president of the National Safety Council, which strongly favors the OSHA rule.

Illinois, where the council is based, just adopted the equivalent of the federal rule for companies in that state, Martin said.

“There are other states that do things very differently. … How do you operate in our country, when the pandemic doesn’t have the border of the state line?”

As of this month, 13 states have some form of prohibition against requiring people to be vaccinated or to showing proof of immunization, according to the Kaiser Family Foundation, a health-policy organization. In Montana, employers cannot take action against workers based on vaccination status. Texas forbids employers from compelling workers or consumers to receive a coronavirus vaccine. And in Utah, employers must offer an exemption to any employee or job applicant who does not want to receive a vaccine or show proof of having gotten a shot.

“That’s one of the main challenges. There are different stances on how states deal with vaccine,” said Anthony Perera, founder and chief executive of Air Pros USA, a home-services company specializing in heating and air conditioning with branches in seven states, including Florida and Colorado. Adhering to each state’s rule “is more of an administrative pain in the neck for us,” Perera said, especially as the company has grown from 200 workers to about 500 during the pandemic.

On the other hand, Perera said, the OSHA rule was starting to bring its own complications. In some markets, such as Atlanta, his workers needed to be vaccinated or tested, putting them at a competitive disadvantage with other firms with similar numbers of workers in that city who are not part of a large national company.

“We support people getting vaccine. We are big believers in that,” Perera said, especially because his employees go into customers’ houses. Still, he said, the OSHA rule “really put employers that are large in a very precarious situation” in a tight labor market.

With the federal rule suddenly moot, some business groups urged the Biden administration to come up with approaches that give employers more flexibility in how they try to keep their workers safe. Greg Ferrara, president of the National Grocers Association, said in a statement that his group would support efforts to increase vaccine acceptance “that will not place added pressure on an already strained food supply chain and labor force.”

The American Trucking Associations, one of Washington’s most conservative advocacy groups, said the OSHA standard would have interfered with “individuals’ private health-care decisions.” Chris Spear, the group’s president, said the court order will allow the industry to “continue to deliver critical goods, as our nation recovers from the pandemic and we move our economy forward.”

Advocates for working people, though, said that employees will be less protected from the virus without a federal requirement that they get vaccinated or submit to frequent tests.

“When we don’t have verifiable or enforceable safety laws in this country, the risk is just on the back of the worker,” said Kim Cordova, president of the Colorado branch of the United Food and Commercial Workers.

Cordova said some employers, including Colorado meatpackers, had quietly pushed for a federal vaccine requirement so they could avoid political backlash from workers and conservative lawmakers if the companies adopted such a policy on their own. Now, with the vaccinate-or-test standard largely null, Cordova said she feared employers would back away from other safety policies.