What are a business's obligations now that the Biden (OSHA) administration has suspended enforcement of its business vaccination mandate(s)?

Question

The Biden administration has suspended enforcement of its vaccination and testing requirements for private businesses after a federal appeals court halted the rules pending review.

The Occupational Safety and Health Administration, in a statement on its website, said the agency “has suspended activities related to the implementation and enforcement” of the requirements “pending further developments in the litigation.”

The U.S. Court of Appeals for the Fifth Circuit, considered one of the most conservative in the country, ordered OSHA last week to “take no steps to implement or enforce the Mandate until further court order.”

Judge Kurt D. Engelhardt, in an opinion for the three-judge panel, called the Biden policy “fatally flawed” and “staggeringly overbroad,” arguing that it likely exceeds the authority of the federal government and raises “serious constitutional concerns.”

Source: https://www.cnbc.com/2021/11/18/biden-administration-suspends-enforcement-of-business-vaccine-mandate.html

Thousands of private and public companies across the USA have mandated a strict vaccination policy, and threatened employees they will get fired if they will not comply.

For example:

• CNN fired 3 employees for coming to the office unvaccinated. https://www.bbc.com/news/world-us-canada-58112125
• 26,000 NYC employees were placed on administrative leave without pay, and potentially will be fired if will not be vaccinated: https://thehill.com/homenews/state-watch/579257-26k-nyc-workers-remain-unvaccinated-after-friday-deadline
• The CEO of ChristianaCare in Delaware said the hospital has terminated approximately 150 employees who did not adhere to its vaccination policy. It employs more than 12,000 workers. Northwell, New York's largest health care provider, recently dismissed about 24 unvaccinated employees. Northwell employs 76,000 workers.
• Novant Health, a hospital system based in North Carolina, has fired more than 175 unvaccinated employees. More than 99 percent of its 35,000 employees have complied with the company's vaccine mandate. Last week, Novant suspended 375 workers, giving them five days to get at least a first shot, which 200 did—suggesting that suspensions can work. https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-firing-unvaccinated-workers.aspx

And many more.

These business are not covered under the HIPAA umbrella to maintain the medical records of their employees with the HIPAA guidelines. And these businesses have no legal way to verify the vaccination record/proof of their employees. So essentially it is a "trust me" system.

I was under the assumption that the businesses were relying on the OSHA vaccination requirements that Biden created. With that requirement being off the table, and potentially being considered as unconstitutional - how will that affect the legal requirement of businesses requiring a vaccination proof?

Answer 1

Not at all. A US business always had the authority to require employees to be vaccinated before entering the workplace, except if a valid state law prohibits this. The EEOC has confirmed that none of the Federal laws which it enforces prevent such a requirement. The proposed mandate under the OSHA Act would merely have required a business subject to the mandate to do what it had the right to do anyway.

Even if it is held that the US Federal Government does not have constitutional authority to impose such a mandate, that would not in any way impair any business which chooses to do so from imposing such a requirement on its employees, subject to the requirements under the ADA and the Civil Rights act to offer reasonable accommodations for sincere religious objections, and for disabilities that would interfere with accepting vaccination.

Businesses generally are not "covered entities" under HIPPA, and so can ask employees for health information such as a vaccination record, if they choose to. Or they can choose to trust an employee's word on the matter.