Now that the U.S. Supreme Court has struck down the OSHA ETS requiring vaccination or weekly testing for private employers with 100 or more employees, many private sector businesses may choose to implement a vaccination mandate policy on their own. Private employers should be aware of the below information to ensure they create legally compliant vaccination requirements, including supporting case law, state-by-state limitations, and practical tips to help draft thoughtful and compliant mandatory vaccination policies.
There are numerous reasons why an employer may decide to require its employees to be vaccinated. Some employers, in anticipation of the OSHA ETS, already instituted policies or mandates in compliance with the ETS and may wish to avoid “whiplash” among its workforce in changing its policy yet again. Still others may wish to implement vaccine requirements because of their belief it is good policy or wishing to reduce the potential for business disruption from increased absences of staff and greater threat of hospitalization, serious infection and longer hospital stays.
Other employers may wish to impose a vaccination and/or mask mandate out of concern for potential future government action seeking to protect employees from COVID-19 infections. This could include Congressional action, which Justice Neil Gorsuch noted in his concurring opinion in National Federation of Independent...
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