As an update to our article posted in December 2021, on January 12, 2022, the U.S. Supreme Court ruled against OSHA’s emergency temporary standard comprised of a COVID-19 vaccine mandate for businesses on January 14, 2022.  Many businesses, and employees, are rejoicing.  Businesses no longer are required to figure out rollout plans, determine economic impact, fear voluntary separations, invest in new systems…but still have the option to move forward with their own vaccine or testing mandates if they so choose.  

According to the CDC, 37% of the U.S. population remains unvaccinated (fully).   The following state populations remain unvaccinated:  44% Ohio, 45% Kentucky, and 47% Indiana.  With numbers still relatively high, the question businesses are grappling with now is, “what responsibility do I have to protect the safety and health of my employees, partners and customers from COVID-19 exposure, even if OSHA doesn’t require it?”  

Early-on in the pandemic, companies were quick to impose new safety measures, such as sneeze guards, increased sanitation and cleaning, mandatory face masks, social distancing, guided foot traffic patterns, etc.  However, many companies were reluctant to impose vaccine mandates.  Approximately 20-35% of companies do currently have or plan to implement a vaccine mandate, even without OSHA’s ETS.

States and municipalities still have the power to impose vaccine or testing mandates on businesses and other populations, though not all will.  According to the Kaiser Family Foundation, 23 states currently have a mandate in place, 15 do not, and 13 have prohibited it.  Ohio, Kentucky and Indiana do not currently have a vaccine mandate at the state level and they challenged all federal mandates (100+ employees, federal contractors, certified Medicare/Medicaid provider), so it is unlikely these states will issue mandates anytime soon but it is not out of the question should the pandemic take another turn.  

Some companies – such as Starbucks – that had previously implemented a mandatory vaccine policy in accordance with the ETS have since recalled that policy.  Others are still moving forward.  If you are considering such a policy, we recommend you read our December article and follow our decision-making framework to ease the planning burden. For businesses concerned about voluntary employee exits as a result of a mandate, recent surveys show that approximately 55-65% of U.S. adults believe employers should impose a vaccine mandate.  

For businesses that do not implement a mandatory vaccination policy, they may consider:

  • Offering on-site testing
  • Covering all or a portion of the cost of regular testing
  • Providing time for off-site testing
  • Mandating and providing face coverings
  • Expansion of remote-work arrangements
  • Incentives for vaccinated employees
  • Health insurance surcharge for unvaccinated employees
  • Allow for job reassignment or restructure

It is important to note that the vaccine mandate DOES remain for healthcare workers at facilities that receive Medicare and Medicaid funds, and federal employees.  

Review the Workforce Innovation Center’s comprehensive checklist for Covid-19 vaccine mandates, testing and precautions here: https://workforceinnovationcenter.com/blog/osha-emergency-temporary-standard-ets-covid-19-vaccination-and-testing


About the Author:

Shonda Sullivan, SPRH, MBA
Founder | Advanced HR Services
Shonda Sullivan is highly effective in human capital management with extensive experience directing enterprise-wide HR strategy and operations. She is a mission-driven professional who is passionate about people, creating cultures of acceptance and inclusion and believes that every organization can have a mission-driven culture that guarantees a strong bottom-line.
Shonda previously served as Senior Director, People & Operations at the Cincinnati USA Regional Chamber, Chief of Human Resources at the Hamilton County Clerk of Courts’ Office, and led Human Capital Innovation at an S&P 500 company. Her success is driven by her ability to build relationships, earn trust, and establish and lead strong programs and processes. She believes that practicality, profitability and values-based business are not mutually exclusive. Shonda has an MBA from the University of Michigan and a BA in International Studies from Centre College. She is SPHR Certified, Predictive Index Certified, Human Capital Strategist Certified and a Member of SHRM.