Officials expect legal challenges to vaccine mandate

Krisi Schell: SRC's workforce vaccination rate is 64%.

Gregg Groves believes the mandate will be ruled unconstitutional.

Betsy Fogle: Prioritizing neighbors' health should be at the forefront of decision making.

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President Joe Biden’s recent announcement of a COVID-19 vaccine mandate on larger U.S. employers has top Missouri Republican lawmakers weighing legal action.

Gov. Mike Parson said in a news release the Biden administration’s six-point pandemic plan, which includes a mandate impacting private U.S. businesses with more than 100 employees, is unconstitutional. In a Sept. 9 speech, Biden said he would direct the Labor Department’s Occupational Safety and Health Administration to craft a rule requiring those employees to receive vaccines or face mandatory weekly testing. Federal officials expect the ruling to take weeks to be issued. Workers would then likely have a period of another two to three months to comply.

“Missouri will not be a pawn in this publicity stunt that seeks to force Missourians to disclose private health care decisions and dictate private business operations,” Parson said in the release. 

The mandate, according to the Parson administration, would infringe on Missouri’s constitutional authority and exceed the scope of authority granted to the president and OSHA.  The governor and Attorney General Eric Schmitt are considering legal action, state officials say.

Parson has frequently spoken out against masking mandates, including in July at an appearance for the Springfield Area Chamber of Commerce’s fourth annual State of the State event.

He said at the meeting he recommends vaccinations but advocates a “common sense” approach to pandemic-related decision making.

The Missouri Chamber of Commerce and Industry also is opposed to the mandate.

“The Biden administration’s new COVID-19 vaccine and testing mandate is the wrong approach for business. As always, the Missouri chamber will stand against attempts to place new government mandates on our employer community,” said Dan Mehan, president and CEO of the chamber, in a statement.

“In contrast with [the] Biden administration’s approach, we believe the federal government should instead cooperate with the employer community to encourage vaccination and support employers that exercise their legal right to require vaccination.”

State Rep. Betsy Fogle, D-Springfield, said the expectation for employers in Biden’s executive order is “very nuanced.”

“But I understand and support the underlying effort, which is to get our neighbors to get vaccinated so we can return to a happy and healthy economy as quickly as possible,” she said, noting that employees choosing to quit their jobs rather than be forced to face mandatory vaccinations or weekly testing is a consideration that must be kept in mind.

“My background is in public health, and I view everything through a public health lens,” she said. “Right now, prioritizing the health and well-being of our neighbors should be at the forefront of our decision making.”

Wait and see
Springfield’s largest employers, CoxHealth and Mercy Springfield Communities, didn’t wait for a federal government order, as both announced vaccine mandates this summer. Another large employer, SRC Holdings Corp., recently unveiled an employee vaccination incentive program.

Krisi Schell, executive vice president of human resources for SRC, said the company started its Drive to 75 program in mid-July to reach a 75% vaccination rate for its 1,900 employees. Roughly 85% of SRC’s workforce is employed locally. 

She said the company’s vaccination rate is currently 64% – double its percentage in early July. SRC has invested roughly $200,000 in the program, which included over $10,000 in prizes for weekly raffles in August and a Sept. 2 drawing for six ATVs.

“We’re going to continue to incentivize people to get the vaccine,” she said. “We will continue to pay $100 to those who are fully vaccinated. We’re committed to hitting our 75% vaccination goal.”

Since Biden’s order was announced, SRC officials have fielded concerns from employees of how it would affect them.

“We have more to learn in that. The way that Biden’s order came out, there’s the option for testing as well,” she said. “That’s a costly process, not only in the cost of the test but administration of those tests.”

Schell said SRC’s early estimates for the proposed weekly testing are over $300,000 per year.

“That’s why we want to encourage people to get vaccinated while there is an incentive,” she said of the $100 payment. “Once the mandate is in place, the mandate is in place. That changes our game.”

In his Sept. 9 speech, Biden additionally mandated shots for health care workers, federal contractors and the vast majority of federal workers.

“We’ve been patient,” Biden said. “But our patience is wearing thin. And your refusal has cost all of us.”

Challenges ahead
Biden’s announcement comes as Missouri continues to trail the U.S. rate of fully vaccinated individuals, which is 54.1% as of Sept. 15, according to Centers for Disease Control and Prevention data. Missouri’s fully vaccinated rate is 46.5%, according to the state’s Department of Health and Senior Services.

Gregg Groves, a local employment attorney with Lowther Johnson Attorneys at Law LLC, said the Biden administration mandate is reasonable. He pointed to guidance from the U.S. Equal Employment Opportunity Commission, which approves employers’ ability to mandate that employees be vaccinated for COVID-19, including as a condition to entering the workplace, subject to reasonable accommodation requirements under applicable law.

Groves said the federal mandate keeps companies from having to be the villain.

“That decision has been made for them,” he said. “It’s taken some of the pressure off. Clearly, it’s controversial. This way, the employer can basically say, ‘We don’t have a choice. We have 100 employees, and the law is the law. We’re going to follow the law, so you have to be vaccinated.’”

Both Groves and Schell expect legal challenges the mandate may face in the weeks ahead will delay company vaccination and testing decisions.

Groves said cases will have to go through a trial court on the state or federal level, then an appellate process before possibly advancing to the state or U.S. Supreme Court.

“It takes quite a bit of time for all of this to fall out and to know whether the law is valid and is going to be upheld or not,” Groves said, adding he predicts it will be ruled constitutional. “I don’t see employers pushing back against it as much as I see employees pushing back.”

Despite the inevitability of legal challenges, Groves said he’s wary of taking any cases on this issue.

“As an employment lawyer, I’m probably not going to take a case by an employee against an employer,” he said. “That employee is going to have a very difficult time prevailing.”