Despite Supreme Court Ruling, Some Employers Will Still Require Vaccinations

Despite Supreme Court Ruling, Some Employers Will Still Require Vaccinations


The Biden administration’s nationwide Covid-19 vaccine-or-testing mandate for large private employers is dead, following the 6-3 Supreme Court opinion Thursday. But for many companies and their workers, a jab will still be a job requirement.

That’s because many local governments, including New York City’s, have vaccine requirements in place, which aren’t affected by the Supreme Court’s opinion. Neither is the U.S. government’s mandate that federal contractors’ employees be vaccinated. Still more large and small U.S. employers have their own requirements.

Wells Fargo (ticker: WFC), which had 249,000 employees as of its last annual report, has a mandate that closely resembles the federal vaccine-or-testing requirement. In November, it told employees that it was strongly recommending they get vaccinated, and that they would need to submit to regular Covid-19 testing if they don’t.

“Wells Fargo will continue our testing program,” said a Wells Fargo spokeswoman on Thursday. “We believe it is the right thing to do for the safety of all employees and our customers.”

Citigroup ‘s (C) stricter vaccine mandate will still go into effect on Friday, Barron’s has learned. The bank is requiring 65,000 U.S. employees out of a global total of 210,000 be vaccinated, or else be fired at the end of this month. On LinkedIn, head of human resources Sara Wechter said Thursday evening that the company has reached 99% compliance.

Federal contractors subject to a separate federal vaccine rule include several of the U.S.’s largest industrial firms, such as Boeing (BA), with 141,000 employees, and Honeywell (HON), which has 103,000 employees. A Honeywell spokesperson said Thursday that 98% of its U.S. employees who are covered by that rule are vaccinated or have approved exemptions. Boeing declined to comment on Thursday.

The federal rule also applies to several airlines, which transport mail or government employees, or participate in a civil reserve air fleet program, among other federal aviation services. A spokesman for American Airlines Group (AAL), in a statement to Barron’s, said that the ruling “doesn’t change anything for American because we are subject to the federal contractor mandate, not the OSHA rule, which is what the Supreme Court blocked.” More than 96% of the airline’s staff have submitted proof of vaccination or a request for an exemption, he said.

Delta Air Lines (DAL), which didn’t impose a vaccine mandate, declined to comment on the Supreme Court ruling. Delta tried to convince employees to get vaccinated by imposing a $200 monthly insurance surcharge on staff who hadn’t gotten shots. More than 90% of its workers have been vaccinated, the airline has said.

Southwest Airlines (LUV) and United Airlines Holdings (UAL) didn’t immediately respond to requests for comment.

The federal contracting rules also face legal challenges. The OSHA ruling by the Supreme Court “expressly carved out any employers subject to federal contracting rules,” said Douglas Brayley, a partner at law firm Ropes & Gray. “It doesn’t apply to them because the CMS mandate and contractor mandates were stricter,” he said, referring to a mandate for vaccinations imposed by the Centers for Medicare and Medicaid Services for healthcare workers.

“The court didn’t say that employer vaccine mandates aren’t allowed,” Brayley said. “This wasn’t an individual liberties case. It was about whether OSHA had authority from Congress to require employer vaccine mandates. Nothing about the ruling stops employers from requiring employees to be vaccinated. It means that employers don’t have to have that policy in place.”

The federal vaccine-or-testing requirement would have been implemented via the Occupational Safety and Health Administration, or OSHA, and applied to companies with more than 100 employees. That’s about 84 million U.S. workers.

President Joe Biden expressed disappointment with the Supreme Court’s opinion Thursday and called on business leaders to step up to impose vaccination requirements.

“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 Supreme Court also on Thursday upheld the Biden administration’s rule that employees at healthcare facilities that work with Medicare or Medicaid must be fully vaccinated, covering more than 17 million workers.

For many companies, staffing shortages have hindered operations during the Omicron wave of Covid-19. Vaccinating their workforces could be a way to decrease quarantine periods and keep operations humming.

“ Ford (F) continues to strongly encourage all employees who are eligible to get vaccinated, and we are encouraged by the 88% of U.S. salaried employees who are already vaccinated,” a spokeswoman said Thursday. “We’re reviewing this ruling to determine if any changes are needed to our vaccination policy as we continue to prioritize the safety of our employees.”

General Motors (GM) appeared to agree: “GM stands firmly in support of Covid-19 vaccination,” a spokeswoman said. “We continue to strongly encourage employees to get vaccinated. GM’s overriding priority is keeping employees and their families safe. Data consistently show that getting vaccinated is the best way to protect yourself and those around you.”

Not all corporations or industry groups were in favor of the federal government’s vaccine mandate.

“The Supreme Court’s decision to stay OSHA’s onerous and unprecedented [Testing Emergency Temporary Standard] is a significant victory for employers,” said David French, the National Retail Federation’s senior vice president of government relations, in a statement. “As NRF and other plaintiffs articulated in our briefs before the court, OSHA clearly exceeded its authority promulgating its original mandate under emergency powers without giving stakeholders the benefit of a rulemaking process.”

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