WASHINGTON (TND) — The Supreme Court is expected to issue rulings Thursday morning — with an opinion on vaccine mandates for employers expected to be among them.
Following oral arguments last week, the Supreme Court appeared poised to reject the nationwide vaccine mandate for small businesses. But according to Chicago attorney Karen Conti, “you never know how the Supreme Court is going to rule based upon the arguments.”
“Sometimes they ask questions of each other and of the litigants, just to kind of play devil's advocate,” said Conti to The National Desk’s Jan Jeffcoat. “They did express some real concern about the general mandate, the one that would mandate employers over 100 employees for their workers to get the vaccination, and the reason is that there's just been no precedent for it.”
But when it comes to a vaccine mandate for healthcare workers, “there was some precedent for it,” according to Conti.
“The justices did say, 'Hey, you know what? If you're taking care of people, trying to cure people and help people, that makes a little more sense,'" said Conti.
Conti added another concern was whether the decision should lie with Congress instead of the executive branch of government. If the Supreme Court does decide to rule against a vaccine mandate, Conti said employees who had been fired for previously not following the mandate would not be required to be rehired by the employer.
“The employer doesn't have any duty to hire them back because that person didn't follow a rule and most employers are employers at will, which means that they can fire and hire for whatever reason, as long as it's not discriminatory,” said Conti.
In the case of the Supreme Court not ruling against vaccine mandates, Conti said “a good faith effort” from employers in getting their employees to vaccinate would most likely be sufficient.
If someone is fired as a result of not receiving the COVID vaccine, could they file for unemployment?
“It depends on the state,” said Conti. “Some states have passed laws that say that vaccination mandate status is nothing that you can discriminate about, so therefore, that person would be entitled to unemployment.”
Conti said that even if the Supreme Court rules against vaccine mandates, private businesses could “absolutely” enact their own mandate for employees.
“And there could be state laws that required these kinds of things,” said Conti. “Those will be more likely to be upheld because our Constitution really gives the power and control to the states when it comes to making laws affecting a person's health and welfare.”