Michigan Employers Won’t Need To Mandate Vaccine-Or-Testing After Supreme Court Ruling

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Detroit Free Press
Jan. 13, 2022
Dave Boucher, Adrienne Roberts, and Kristen Jordan Shamus

Big Michigan businesses do not need to require workers be vaccinated against COVID-19 or submit to regular weekly testing after a U.S. Supreme Court ruling Thursday that prevents the Biden administration’s sweeping regulation from taking effect.

But state health care facilities that receive specific federal funding must comply with a vaccine mandate, the court determined in a second ruling.

The broader Biden administration proposal would have affected as many as 2.6 million Michiganders working at 5,500 businesses across the state, the Michigan Department of Labor and Economic Opportunity recently told the Free Press.

It comes as Michigan and the rest of the U.S. continue to battle the highly contagious omicron variant, with many COVID-19 trends reaching their worst marks of the pandemic.

By a 6-3 decision, the conservative justices agreed the U.S. Occupational Safety and Health Administration overstepped its bounds in creating the rule, intended for any business with 100 or more employees. Chief Justice John Roberts joined justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett in the majority.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” states the majority opinion.

“Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The ruling rejecting the Biden administration’s broader mandate stymies the federal government’s ability to control a pandemic ravaging the country, wrote the traditionally left-leaning dissenting justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

“If OSHA’s standard is far-reaching — applying to many millions of American workers — it no more than reflects the scope of the crisis,” the dissenting justices said, referring to the federal rule as a standard.

“The standard responds to a workplace health emergency unprecedented in the agency’s history: an infectious disease that has already killed hundreds of thousands and sickened millions; that is most easily transmitted in the shared indoor spaces that are the hallmark of American working life, and that spreads mostly without regard to differences in occupation or industry.”

The rulings do not prevent individual businesses from instituting their own vaccine policies. In fact, the court previously rejected legal challenges to such vaccine rules.

In a statement, Biden said the court’s ruling on vaccinations for health care workers will save lives, but he was disappointed with its decision to reject the broader plan.

“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.

Vaccine mandate for health care facilities

But the majority found the case is a bit different for health care workers. In a separate 5-4 ruling, the court allowed for some OSHA regulation of specific workplaces, and said federal health officials can mandate vaccinations for people working in health care facilities receiving Medicaid or Medicare payments.

Roberts and Kavanaugh joined Breyer, Sotomayor, and Kagan in the majority on the second case.

“Vaccination requirements are a common feature of the provision of health care in America: Health care workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella,” the majority wrote in the second ruling.

“All this is perhaps why health care workers and public health organizations overwhelmingly support the Secretary’s rule. … Indeed, their support suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the “health and safety” regulations that Congress has authorized the Secretary to impose.”

The mandate for health care workers applies to 10.4 million people nationally who work at 76,000 medical facilities that get Medicare or Medicaid funding. That includes employees of hospitals and surgery centers, dialysis facilities, nursing homes as well as contractors.

Health care workers must be fully vaccinated no later than Jan. 28 to comply with the new rule.

About a half-dozen large Michigan health systems put in place their own vaccine requirements before Biden’s proposal in September. Henry Ford Health System became the first in Michigan to announce in June it would require vaccination as a condition of employment. Soon after, Trinity Health, Ascension Michigan, Spectrum Health, Beaumont Health, Munson Healthcare, and Michigan Medicine made similar announcements.

Neither the Detroit Medical Center nor McLaren Health Care previously had vaccine requirements in place for workers, and now must work to comply with the federal rule.

DMC spokesman Jason Barczy said Thursday, “We intend to comply with the mandate.”

At McLaren, spokesman James Curtis said the health system already encourages the vaccine for its workers and also will adhere to the federal vaccine mandate.

At Michigan Medicine, about 7,800 union workers were exempt from the Ann Arbor-based health system’s vaccine mandate. Now, those workers must comply with the federal rule, spokeswoman Mary Masson said.

The American Health Care Association, which represents more than 14,000 U.S. nursing homes and long-term care facilities, said it respects the court’s ruling, but remains “concerned that the repercussions of the vaccine mandate among health care workers will be devastating to an already decimated long term care workforce.

“When we are in the midst of another COVID surge, caregivers in vaccine-hesitant communities may walk off the job because of this policy, further threatening access to care for thousands of our nation’s seniors,” said Mark Parkinson, president and CEO of AHCA.

While 83% of nursing home workers nationally are fully vaccinated, the association said, Michigan’s rate of vaccination is far lower.

As of Dec. 26, about 70.4% of health care workers at Michigan nursing homes were fully vaccinated, according to the most recent federal data.

The Michigan Health and Hospital Association has not taken a formal position on the Biden administration’s COVID-19 vaccine mandates and does not track which of the state’s 133 hospitals already have vaccine requirements in place for workers and which do not, said John Karasinski, a spokesperson for the industry group.

But the timing of the court’s decision — amid the nation’s worst yet coronavirus surge — will be “extremely challenging” for applicable health care facilities that previously did not have a vaccine mandate, Karasinski said.

Impact of court’s rulings on business

In a statement, Gov. Gretchen Whitmer’s spokesman echoed previous comments rejecting any kind of state-issued mandate.

“While we’ve never had plans to implement any sort of statewide vaccine mandate, we’ve always believed that vaccines are the best way to protect ourselves, family, and ensure that businesses and schools can remain open safely,” spokesman Bobby Leddy said.

“That’s why we continue to work with vaccine providers and the federal government to ensure that all eligible Michiganders have access to this safe and effective resource.”

Whitmer previously appeared to go back and forth on the idea of a vaccine or test mandate. She has personally rejected the idea of implementing one at the state level, and she reportedly called the federal rule a “problem” that would cause the state of Michigan to lose employees.

However, she later clarified that she was not criticizing the rule and did support it.

“I appreciate what President Biden is trying to accomplish. It’s about saving lives. It’s about getting more people vaccinated. If we’re successful on those fronts, it’s going to inure to everyone’s benefit,” Whitmer said in December.

Many large companies in Michigan were ready and prepared for the vaccine mandate to go into effect, but were waiting on the decision from the Supreme Court, business association leaders said.

Sandy K. Baruah, president and chief executive officer of the Detroit Regional Chamber, said in an interview last week that more and more Fortune 1,000-size businesses were rolling out vaccine mandates. Smaller companies with 100-250 employees were less likely to mandate the vaccine, but were also concerned about the costs that would have come with offering employees COVID-19 tests.

In an emailed statement Thursday, he said the Chamber continues to be a strong proponent of vaccines and the rights of employers to mandate vaccines, but the court’s decision, “puts the decision back where it belongs, with local health officials and individual companies.”

Other chambers and business associations also said they were pleased with the Supreme Court ruling, including the Michigan Manufacturers Association and the Listen to MI Business coalition, which includes several business chambers from around the state.

“The court fully acknowledged the sweeping and disruptive nature of OSHA’s vaccine mandate and the numerous complexities associated with its implementation,” Listen to MI Business coalition’s spokesperson Wendy Block said in an emailed statement.

Maria Dwyer, a managing member of Clark Hill’s Detroit office and a labor and employment attorney, said ahead of the Supreme Court decision that some clients had gone ahead and mandated the vaccine and some had implemented the federal rule, while others were holding out. She said testing, because of supply issues, and figuring out medical and religious accommodations, were common concerns.

Detroit-based DTE Energy said Thursday the utility had already been testing employees for COVID-19 in some key work groups. Lisa Bolla, a spokesperson for the utility, said it will continue to have as many employees work remotely as possible, and DTE requires all employees to wear a mask and keep their distance regardless of vaccination status.

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