Supreme Court arguments set for this week as local companies seek clarity on vaccine mandates

Lisa Tingle, from Dayton, receives a flu shot from Ziks Clinical Pharmacist, Emmanuel Ayanjoke at the store Friday Dec. 3, 2021. Flu vaccines are urged ahead of Christmas time gatherings and to help prevent twin surges of flu and COVID-19. JIM NOELKER/STAFF
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Lisa Tingle, from Dayton, receives a flu shot from Ziks Clinical Pharmacist, Emmanuel Ayanjoke at the store Friday Dec. 3, 2021. Flu vaccines are urged ahead of Christmas time gatherings and to help prevent twin surges of flu and COVID-19. JIM NOELKER/STAFF

Credit: Jim Noelker

Credit: Jim Noelker

Dayton-area companies have found themselves in regulatory limbo as conflicting court orders have come fast and furious on the constitutionality of the Biden administration’s vaccine mandates, at times staying enforcement of the mandates and at times supporting them.

Now, a U.S. Supreme Court hearing is set for Friday to resolve at least two of the biggest outstanding issues.

The nation’s top court has scheduled a hearing for oral arguments on two measures, a vaccine-or-testing mandate the administration has aimed at the nation’s large employers and a vaccination requirement for a good number of health care workers.

Companies have been looking for clarity on various aspects of the issue for weeks. As recently as Dec. 17, the U.S. Sixth Circuit Court of Appeals reinstated the vaccine-or-test mandate for large businesses, lifting a stay that the Fifth Circuit had imposed. (Shortly after that ruling, groups challenging the rule impacting large businesses asked the Supreme Court to review the case.)

Also on Dec. 17: The 11th Circuit Court of Appeals refused the Biden administration’s request to lift an order blocking its vaccine mandate for federal contractors.

How to proceed

Companies have been left to decide for themselves how best to proceed.

“We encourage all employees to get Covid-19 vaccines,” Leslie O’Hara, assistant human resources director for Fuyao Glass America, told the Dayton Daily News in an email. “We have not started making it a mandate given the uncertain legal status with the government’s vaccine rules. We will comply with the legal requirements when the issue is settled.”

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The Fuyao Glass Plant in Moraine Ohio employs over 2000 workers.

Credit: JIM NOELKER

The Fuyao Glass Plant in Moraine Ohio employs over 2000 workers.
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The Fuyao Glass Plant in Moraine Ohio employs over 2000 workers.

Credit: JIM NOELKER

Credit: JIM NOELKER

The Biden administration proposed a pair of rules in November that together covered more than 100 million American workers. And the Centers for Medicare and Medicaid Services required 76,000 health facilities that take Medicare or Medicare payments to ensure their 17 million employees were vaccinated.

John Ho, labor and employment attorney and OSHA chair with the Philadelphia law firm Cozen O’Connor, said one concrete step that big employers can take now — if they haven’t yet — is to gather information on the vaccine status of their workers. Find out who among your workers is vaccinated and who is not, he advises.

Such a move demonstrates “good faith” attention to the matter should an OSHA inspector come calling, Ho said.

“Start that process, if you haven’t already,” Ho said in an interview. “Start the record-keeping process of just getting your vaccination-status roster in place. Because if this thing is sustained, at least you’ll know.”

Encouraging employees to get vaccine

Mary Ann Kabel, a spokeswoman for AES Ohio, said her company is “continuing to encourage and incentivize our employees to be fully vaccinated for their safety, their families and communities.”

She did not respond to a question about what incentives the electric utility is offering its employees.

Seth Baugess, a spokesman for Wright State University, said the university is “status quo” on its employee vaccine mandate. All Wright State employees must be fully vaccinated and upload an image of their federal vaccination card, or obtain a university-approved medical or religious exemption, by Tuesday.

“I know that, throughout the pandemic, Wright State has benefitted from a high rate of compliance with our campus safety protocols and that has resulted in very little COVID spread on campus,” Baugess said.

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All Wright State employees must be fully vaccinated and upload an image of their federal vaccination card, or obtain a university-approved medical or religious exemption, by Tuesday. JIM NOELKER/STAFF

Credit: Jim Noelker

All Wright State employees must be fully vaccinated and upload an image of their federal vaccination card, or obtain a university-approved medical or religious exemption, by Tuesday. JIM NOELKER/STAFF
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All Wright State employees must be fully vaccinated and upload an image of their federal vaccination card, or obtain a university-approved medical or religious exemption, by Tuesday. JIM NOELKER/STAFF

Credit: Jim Noelker

Credit: Jim Noelker

A spokesman for the University of Dayton declined to comment beyond referring to a message the university sent to faculty, staff and students Dec. 3.

“The University of Dayton will continue to encourage all employees and students to be fully vaccinated against COVID-19 but, due to a federal court ruling, will pause efforts to require employees to be vaccinated or exempted for medical or religious reasons,” UD said in that message.

“Through your efforts and the federal vaccination mandate, we have achieved a high vaccination rate,” UD added. “This has helped reduce the spread of the virus on campus and allowed for in-person education and research to continue throughout the semester without major disruption.”

As of Dec. 1, 96% of all UD employees had complied with the federal contractor mandate to be fully vaccinated or exempted, the university also said in that message.

A GE Aviation spokesperson said the company will not grant any interviews on the topic.

“GE has paused the implementation of the (Biden administration’s) executive order in line with the preliminary national injunction,” the company said in a brief response to this newspaper’s questions.

A spokesman from Emerson’s headquarters in St. Louis said Emerson has held employee vaccine clinics and encouraged its U.S. employees to become fully vaccinated to protect the health and safety of themselves and their families, our customers and visitors.

A spokesman for Emerson declined say how many employees the company has in Sidney and Dayton. But he said the business continues to monitor pending litigation.

Confidence in mandate

The White House has expressed confidence its mandates will prevail.

“Especially as the US faces the highly transmissible Omicron variant, it is critical to protect workers with vaccination requirements and testing protocols that are urgently needed,” the White House said in a statement Dec. 22. “At a critical moment for the nation’s health, the OSHA vaccination or testing rule ensures that employers are protecting their employees and the CMS health care vaccination requirement ensures that providers are protecting their patients.”

Ho said clarity on the matter is needed.

“It’s good to see the Supreme Court acting on a somewhat expedited basis,” he said. “Who knows what the court will do? But hopefully there will be guidance one way or the other.”


Unmatched coverage

The Dayton Daily News has covered the legality of requiring vaccines for workers for the past year. Count on us for continued coverage on the subject when the Supreme Court hears oral arguments on Friday.

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