In the wake of the U.S. Supreme Court’s ruling Thursday blocking the Biden administration’s requirements that employees at large companies either get vaccinated against COVID-19 or be tested regularly, some Omaha companies said they will no longer require employees to receive the vaccine.
Spokespeople for First National Bank of Omaha and Conagra said they are no longer proceeding with the steps specified in the now-blocked emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration in November.
A Mutual of Omaha spokesperson said Monday that the company was collecting the vaccination status of its employees and requiring unvaccinated employees to wear a face covering in the workplace, but was not requiring its employees to either be vaccinated or tested. The spokesperson said Mutual has not changed any of its protocols in the wake of the 6-3 Supreme Court decision.
Several other large employers contacted by The World-Herald did not specify whether they would require their employees to receive a vaccine or be tested for COVID-19.
Nationally, some large employers, including Target and Ford Motor Co., said they were reviewing the court’s decision.
The companies that would have been affected by the federal mandate, which would have also required unvaccinated people to wear a mask while at work, employ at least 100 people.
With the court’s conservative majority striking down the mandate, Baird Holm attorney R.J. Stevenson and Creighton University law professor Kelly Dineen said it’s up to companies whether they want to require their employees to be vaccinated or tested.
They said companies can implement those requirements as long as they don’t violate collective bargaining agreements or approved religious and medical exemptions.
“This (ruling) is simply the court saying that the government cannot mandate” employees be vaccinated or tested weekly, Stevenson said. “There may be some employers who like certain aspects of the ETS and decide to keep it in place. … Employers can still implement those things if they want to. They’re just not mandated by OSHA to do so.”
Stevenson said employers may be hesitant to implement such requirements and risk losing employees in a tight labor market.
“Right now, employers are trying to do everything they can to get and keep employees,” he said. “They’re not really motivated to separate (with) those employees over such things as employees not being willing to provide proof of vaccination or not willing to be tested.”
In contrast, Dineen believes that it may be advantageous for employers to implement some of the requirements.
“I think we overestimate the number of people who object and underestimate the number of people who might want to go work at some place with a vaccine mandate,” she said.
Although President Joe Biden announced the mandate in September, OSHA didn’t formalize the mandate until it issued the ETS. At the time of Biden’s announcement, Stevenson and Dineen said the administration appeared to be within its rights.
But after oral arguments before the court, neither of them were surprised by the ruling.
The majority wrote that the mandate was unprecedented in its scope.
While saying the decision shows that the court recognizes OSHA’s general authority to implement safety and health standards even in an emergency basis, Stevenson said the court determined that this ETS was too broad.
Paraphrasing the court’s thoughts, Stevenson said “Here, the court said (they) believe that the agency exceeded its authority because this ETS really goes beyond just the workplace. This is dealing with the matter that’s of concern to the general public.”
The court’s liberal justices wrote a dissenting opinion that, among other things, said the decision “seriously misapplies the applicable legal standards” and thus the court acted “outside of its competence and without legal basis.”
Dineen said that she found the dissenting opinion “fairly persuasive” and that arguments presented by the majority are inconsistent with what OSHA said in the ETS, which was targeted toward workplace exposure. She said some of the hazards that OSHA regulates inside the workplace are also hazards outside of the workplace.
That has not mattered before, Dineen said.
In a separate 5-4 ruling, the court upheld a vaccine mandate for health care workers.
A vaccine mandate for federal contractors has not been considered by the Supreme Court. That mandate is on hold after a lower court blocked it.
Many of Nebraska’s top elected officials, all Republicans, publicly praised the Supreme Court’s ruling blocking the OSHA mandate.
“The Supreme Court has rightly struck down this stunning overreach of federal power. Letting the mandate stand would have created a dangerous precedent. Any future administration could then declare an emergency, publish OSHA rules, and force private businesses to enact federal policies,” Gov. Pete Ricketts said in a statement.
On Twitter, Sen. Deb Fischer, Rep. Don Bacon and Rep. Adrian Smith also praised the decision.
This report includes material from the Associated Press.