Editorial: Firms must weigh private mandates

The failure of the Biden administration’s attempt to introduce a federal vaccine-or-test mandate for larger companies means that the decision over whether to use one of the key workplace safety tools available to fight the pandemic is back in the laps of employers.

How many choose to use compulsory shots to protect workers from serious COVID-19 infections, though, remains to be seen. 

The mandate, which sought to make vaccines or weekly testing compulsory for workers at organizations with 100 or more employees, faced legal challenges from the time it was announced in early November. A case was fast-tracked to the U.S. Supreme Court, which in early January ruled that the administration had overstepped its authority, sending the case back to the lower court. Later in the month, the Occupational Safety and Health Administration, which had been set to implement the mandate, withdrew from the fight.

The fate of the proposed federal rule was always going to be in the balance, given the anti-vaccine sentiment among a significant minority of the U.S. population and the make-up of the Supreme Court, but its demise creates challenges for employers.

Although many employers said that implementing the requirement would be onerous, it would have had the effect of taking out of their hands the controversial decision whether workers should be vaccinated. 

As we report on page 4, private employers will still, subject to some restrictions, be able to require that workers be vaccinated. The high court’s decision, however, has already split employers, with some withdrawing existing vaccine requirements and others pressing ahead.

Companies that require vaccines have understandable reasons for moving forward with their plans or keeping their rules in place. The apparent disparity in the severity of symptoms between the vaccinated and the unvaccinated who contracted COVID-19 over the past couple of months would seem to indicate that the surge in infections that accompanied the spread of the omicron variant would have been far less disruptive had vaccines been more widely accepted in the United States, where the fully vaccinated rate remained stubbornly below 65% late last month.

Organizations with a healthy workforce clearly have a competitive advantage over their peers with a less healthy employee population, and maintaining a safe working environment is in everyone’s interest.

On the other hand, those that insist on vaccines in areas of the country where resistance is high risk inflaming unvaccinated workers in an environment where staff shortages are already causing acute problems. In addition, consequent lawsuits alleging discrimination and other violations will be a drain on resources, regardless of whether they are ultimately unsuccessful.

While a vaccine mandate would have been a simpler solution, the country clearly was not ready for it, so employers are back in the hot spot and will have to choose individually what makes sense for them and their workers.