Now that the U.S. Supreme Court has blocked the Biden administration’s vaccine-or-test rule for private employers, companies nationwide are faced with a decision: Go ahead with a vaccine mandate anyway, or abandon it.
No matter which path companies choose, backlash appears near certain.
This week, workwear company Carhartt became the latest example of the public tightrope employers must walk to balance the health and safety concerns of employees against staffing challenges, potential legal liability and customer blowback.
“Employers are between a rock and a hard place. You have a responsibility as an employer to provide a safe working environment for your employees. That’s an incredibly subjective standard. It just got more subjective when you don’t have the benefit of having a law to be able to point at,” said David Lewis, the CEO of the human resources consulting firm OperationsInc.
CONSERVATIVE OUTCRY OVER THE MANDATE AT CARHARTT
On Friday, Carhartt CEO Mark Valade announced in an internal all-staff email that the company’s vaccine mandate — which went into effect for most of Carhartt’s 3,000 U.S.-based employees earlier this month — would stay in place despite the Supreme Court’s decision. The mandate includes exceptions for religious and medical reasons.
“We put workplace safety at the very top of our priority list, and the Supreme Court’s recent ruling doesn’t impact that core value,” Valade wrote. “An unvaccinated workforce is both a people and business risk that our company is unwilling to take.”
Then, a photo of the email circulated on social media.
While vaccine supporters applauded the move, some conservatives called for a boycott of Carhartt products and questioned the wisdom of the company’s decision given its traditional blue-collar customer base.
“Pretty rich from a company sustained by the ranchers, farmers, laborers, etc. who make this country great and celebrate her values of freedom and liberty. Boycott Carhartt until they break,” wrote Molly McCann, a conservative lawyer who once represented former Trump administration national security adviser Michael Flynn.
Although the company has dramatically expanded its reach in recent years, its best-known products are the rugged jackets and overalls worn by construction workers, contractors and utility workers — and sometimes by politicians on the campaign trail looking to bolster their blue-collar credibility.
“Carhartt fully understands and respects the varying opinions on this topic, and we are aware some of our associates do not support this policy. However, we stand behind our decision because we believe vaccines are necessary to protect our workforce,” said company spokesperson Amy Hellebuyck in a statement, She added that a “vast majority” of Carhartt’s employees are vaccinated or in the process of becoming so.
THE POLARIZED LANDSCAPE FACING COMPANIES
While vaccines do not completely eliminate transmission of COVID-19, they reduce the likelihood of catching the disease and dramatically improve the odds of avoiding hospitalization or death. Those who have received booster shots are even more protected. Vaccine mandates have been successful at driving up vaccination rates.
The Biden administration rule would have required private employers with 100 or more employees to implement a vaccine mandate or test negative for COVID-19 at least once a week. The rule would have covered roughly 84 million workers.
A December poll by CNN and SSRS reported that 6 in 10 people approved of a rule like the Biden administration’s. In another, Axios and Ipsos found that 54% of respondents said they supported employer mandates.
But support for mandates differs sharply among Republicans and Democrats. In the Axios poll, nearly 80% of Democrats supported employer mandates, compared with just 30% of Republicans.
The Biden administration announced the rule in September with the hope that it could drive up vaccination rates nationwide. Originally, it was set to go into effect this month as a regulation of the Occupational Safety and Health Administration.
But the rule was dogged by legal challenges and ultimately blocked by the Supreme Court last week in a 6-3 vote.
Adding to the confusion for companies are states where lawmakers have effectively blocked private vaccine mandates — like in Montana and Tennessee — or undercut them by requiring expansive exemption policies, as in a handful of other conservative states.
“It’s a very, very swampy, murky mess here,” said Lewis. “My strongest message to our client base has been: You’re either all in, or you’re not.”
THE DECISION ISN’T ALWAYS STRICTLY ABOUT SAFETY
Ultimately, Lewis said, employers will make business decisions about whether to keep vaccine mandates in place. For public-facing companies, consumer sentiment is one factor. But the opinion of current employees also matters, he says.
The tight labor market could be the biggest concern for companies with lower vaccination rates, which may hesitate to lay off employees who refuse vaccines at a time when finding replacements could be difficult.
According to the Centers for Disease Control and Prevention, more than 73% of Americans over the age of 18 are fully vaccinated. Those who are unvaccinated tend to be younger than 50 and less educated.
That means companies with largely white-collar and coastal workforces may have an easier time implementing and enforcing a vaccine mandate, Lewis said.
“It’s not just about the white-collar versus blue-collar, but there’s definitely a divide that starts there,” said Lewis. “It’s politics. It’s regions within the country that have been more on board with vaccinations than those that have not.”
Following last week’s Supreme Court ruling, that divide is increasingly front and center for employers.
Financial goliath CitiGroup said Friday that it will go ahead with its mandate after 99% of the company’s tens of thousands of U.S.-based employees complied with a mid-January vaccination deadline.
United Airlines CEO Scott Kirby has continued to defend his company’s mandate. Last week, he said the policy “saves lives” and revealed that, on average, more than one United employee was dying of COVID-19 each week before the company’s mandate took effect in September.
Among the companies that have taken the opportunity to drop vaccination rules is Starbucks, which had announced earlier this month that it would require employees at its thousands of locations across all 50 states to be fully vaccinated by Feb. 9 or else be tested weekly, as directed by the OSHA rule.
On Tuesday, the company reversed course, informing employees that it would not require any vaccine or testing regimen.
And two of the country’s biggest manufacturing companies – GE and Boeing – both dropped their requirements in December after a federal judge stayed another Biden administration rule requiring federal contractors to implement vaccine mandates.