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With Biden's Mandate Overturned, CRE Can Write Its Own Vaccine Rules. Will It?

After the U.S. Supreme Court knocked down the Biden administration’s vaccine mandate last week, giving employers, in most cases, the final say about vaccination mandates in their offices, commercial real estate's biggest firms are mostly silent about the new regulatory landscape.

The Supreme Court decided against the Biden administration’s vaccine mandate, giving employers more leeway to enact their own policies.

The Supreme Court’s 6-3 decision Jan. 13 blocked a proposed Occupational Safety and Health Administration rule that would require employees of companies with more than 100 workers to be fully vaccinated against Covid-19 or be subject to a strict testing regimen.

The ruling was the result of a flurry of lawsuits from different states, business associations and religious groups arguing the proposed emergency regulation overstepped OSHA’s authority. The mandate would have impacted an estimated 84 million private sector employees.

Now, companies have to contend with city and state laws, such as the New York City vaccination mandate introduced in December by departing Mayor Bill de Blasio. New Mayor Eric Adams has yet to vocally defend or object to the mandate, while Staten Island real estate firm Cornerstone Realty has filed a lawsuit seeking to block the regulation.

But for the most part, companies have the freedom to decide if and how they want to mandate vaccinations for their workforce going forward. 

In a Bisnow survey of commercial real estate brokerages and construction firms — including CBRE, Savills, Newmark, Cushman & Wakefield and Marcus & Millichap — to gauge their vaccination policies, just a handful responded to a query about their plans. 

“We follow local government mandates and guidelines regarding employee vaccinations and office occupancy wherever we do business," JLL Head of Human Resources Katie Duncan said in a statement. "We believe the office is central to our work experience and culture and promotes innovation, collaboration, networking, learning and professional development. At this time, our US offices are open in accordance with employee feedback that they want to have access to an office when possible.”

New York City is the first and only municipality to try to require vaccinations by all private employers, with a few small exceptions. A handful of states and other cities have passed regulations requiring regular testing and even vaccinations for specific types of businesses, such as regulations around nursing home or childcare workers, or Chicago’s rule on “covered” businesses such as restaurants or bars, but none include private offices. Following local guidance, for the most part, means not requiring vaccines.

Skanska USA previously answered questions about its vaccine mandate policy, noting that it has followed public policy guidelines thus far through the pandemic, and “subject to the outcome of pending court challenges, Skanska will continue to follow all federal, state and local public health orders, including those released by the Safer Federal Workforce and OSHA’s recently published Emergency Temporary Standard.”

The firm hasn’t responded to a request for comment in recent days about how the current landscape may or may not have shifted that stance.

Cushman & Wakefield declined to comment, while Toronto-based Avison Young pointed to its already-public vaccination policy, which required that all North American staff needed to be fully vaccinated by Oct. 31 or present regular evidence of negative tests to “work within any of our offices and client premises.”

Other firms within the industry, such as Redfin, RXR, Durst and Related Cos., had already announced vaccine mandates for their employees.  

Drake University associate professor Denise Hill, a public administration expert who wrote the book Vaccine Mandates in the Health Care Workplace: A Legal Analysis for Employers, said that while large employers won’t be forced to adopt a mandate, many face difficulties operating due to health issues and workers out with Covid-19. 

“A lot will depend on how everything goes in terms of the pandemic itself,” she said. 

Jackson Lewis Managing Principal Joanne Lambert, a lawyer who specializes in commercial real estate, employment and Covid-19, believes that companies proceeding with a mandate need to focus on planning and communicating early, since it's not a one-size-fits-all situation. Firms need to take into account that they will have to collect vaccine cards and information, she said, and need to do so privately with proper data protection procedures.  

The decision has been met with mixed responses from corporate America. Last week, Blackstone became one of a league of Wall Street firms announcing their own new vaccine mandates. The Association of Builders and Contractors, which filed a petition for review of the proposed mandate, and had previously spoken about the challenge of encouraging vaccination within the industry due to potential material and labor shortages, responded to the decision with a victorious statement.

“ABC is proud to have played an important role in preventing OSHA from causing irreparable harm to the construction industry,” the group said.

The 6-3 decision by the Supreme Court was technically a stay, not a full decision. The court could hear the case again on its merits and revisit OSHA’s powers, especially if there’s another variant or surge, Hill said, though its success on the merits “would be shaky at best."