Vaccine Mandates Present a Unique Test for Employers

A New Kind of Challenge

The COVID-19 pandemic has tested area employers in every way imaginable. And soon, it will test many in a way that probably couldn’t have been imagined even a few months ago — vaccine mandates put in place by the Biden administration and set to take effect probably before the end of the year. The mandates are prompting lawsuits, generating questions that are often hard to answer, and creating high levels of anxiety for employers who are already dealing with a host of problems, especially an ongoing workforce crisis.

Amy Royal says she’s seen all manner of new regulations — state, federal, and local — that employers and their HR departments must contend with as they carry out business day to day.

But she speaks for all employment-law specialists — and those HR professionals as well — when she says she’s never seen anything quite like the COVID-19 vaccine mandates either already in effect or soon to be.

The mandates are far-reaching in their impact, in terms of everything from the number of businesses affected to the costs they will have to absorb to the very real possibility of losing more valued employees, said Royal, a principal with the Indian Orchard-based Royal Law Firm, which specializes in employment law, specifically representing employers. She summed up the measures and their bearing on employers with a single word. “It’s exhausting for companies.”

That would be an understatement.

Already, vaccine mandates enacted by states, individual cities and towns, healthcare providers, and private companies are resulting in thousands of people being fired or simply walking off the job. That list includes the football coach and several assistants at Washington State University, more than 100 state troopers in Massachusetts, police officers in countless communities, and a wide range of healthcare workers, especially nurses.

The recent developments raise questions on everything from just how safe many cities now are to which games NBA star Kyrie Irving can actually play in — none at his home court in Brooklyn, for starters.

And the next shoe — a rather large one — is set to drop in this unfolding drama. That would be the Biden administration’s vaccine and testing mandates, the ones affecting companies of more than 100 employees, any business with federal contracts, and federal employees — mandates the administration estimates will impact more than 80 million workers.

“People would be surprised at the array of businesses, both for-profit and nonprofit, that meet that federal-contractor test.”

Royal and other employment-law specialists we spoke with said there are far more businesses in the 413 in those categories than most people would think, and all of them are, or should be, working diligently to prepare for these mandates — which will take effect soon, although exactly when is a question.

Actually, that’s one of many, many questions, said John Gannon, an employment-law specialist with Springfield-based Skoler, Abbott & Presser, who said others include everything from whether employees get paid while they’re getting vaccinated or tested to who pays for those tests, to whether employees who ultimately lose their jobs to these mandates are eligible for unemployment benefits.

“People are asking, ‘what do we do now — what can we do once the mandate is rolled out?’” he said. “They also want to know when it is going to release and how much lead time they’re going to have for compliance. And, unfortunately, we just don’t know the answers to those kinds of questions.”

Meredith Wise, president and CEO of the Employers Assoc. of the NorthEast, agreed, noting, as others did, that the vaccine mandates add new layers of intrigue, challenge, and polarization for employers who have seen more than enough of all three over the past 20 months.

When she talked with BusinessWest, Wise had recently left a roundtable of CHROs — chief human-resource officers — representing companies across the Northeast. The group meets every six weeks to discuss the challenges its members are facing, she noted, adding that the dominant topic of conversation was the new vaccine mandates and what they might mean for companies, especially in the broad realm of employee relations.

“People who have not wanted to get vaccinated may get tired of the testing and may eventually get vaccinated, but be disgruntled about it,” she said, adding quickly that, if employers have to pay the cost of testing — and pay employees while they’re getting tested — then there is little incentive, if any, to get vaccinated.

“There’s still a lot of questions about what the mandates are going to say, how it’s all going to come down, and whether we’re going to lose employees,” she went on, adding that employers may have to pay a steep price for a policy they didn’t implement themselves.

The best advice Gannon and the others we spoke with have for employers and the HR departments is to be as ready as they can be for these mandates and fully understand just what they are up against. This means knowing how many employees are vaccinated (and not) and having a plan in place for meeting the mandates.

Above all else, Wise and the employment-law specialists advise that businesses take the mandates seriously — even if enforcement of its provisions will be extremely difficult, if not impossible — and to be prepared.

 

Taking More Shots

BusinessWest asked a number of area business owners and nonprofit managers who fall under the categories of the Biden vaccination mandates to discuss the measures and what they could mean.

Not surprisingly, none really wanted to talk about it — on the record or even off. Indeed, the subject of vaccinations and the mandates regarding them are a hot-button, polarizing topic, to say the least. Most employers are staying away from it, figuring it’s best not to say anything than delve into a matter drenched in controversy.

Meredith Wise

“There’s still a lot of questions about what the mandates are going to say, how it’s all going to come down, and whether we’re going to lose employees.”

That goes for MassMutual, one of the region’s largest employers, with more than 6,000 workers, which offered only this statement from a spokesperson:

“We are waiting for the specifics of the OHSA guidance to be issued, after which we will be able to better evaluate what it will mean for our company and employees. In the meantime, we have begun to prepare by determining how much of our employee base is vaccinated, which is currently approximately 85%. We are also encouraging fully vaccinated employees to begin coming into the office if they are comfortable doing so and on a schedule that makes sense for them. We’ll continue to evaluate our broader return based on the status of COVID-19 as well as guidance from medical experts and government officials to ensure the health, safety, and well-being of our employees.”

With that, the company probably spoke for most employers in the region, who are waiting for OSHA (the U.S. Department of Labor’s Occupational Safety and Health Administration) to offer specifics while also assessing just where they stand with regard to what percentage of their workforce is vaccinated.

Here’s what is known at this juncture. The Biden action plan directs OSHA to issue an emergency temporary standard (ETS) that requires all employers with 100 or more employees to ensure their workers are either fully vaccinated or get tested weekly for COVID-19, Gannon said. Employers will also be required to provide paid time off to employees to get vaccinated and recover from any side effects from the vaccine.

Meanwhile, the Biden administration’s plan also includes two executive orders requiring federal employees and federal contractors (and subcontractors) to get vaccinated, regardless of workforce size. There is no weekly testing exception; employees working on or in connection with a federal contract, including subcontractors, must be fully vaccinated by Dec. 8.

And, as noted, there are more companies in the 413 that will be impacted by these measures than most would think. Indeed, while most businesses in this region fit the textbook definition of ‘small’ — under 100 employees — there are hundreds of companies, nonprofits, and institutions that count at least that many workers. That includes healthcare-related agencies, manufacturers, nursing homes, municipal departments, a few banks, and many more. Meanwhile, the provision regarding federal contractors — and subcontractors — brings many more businesses under the auspices of the Biden mandates.

“People would be surprised at the array of businesses, both for-profit and nonprofit, that meet that federal-contractor test,” said Royal, noting that her own firm has had federal contracts at different points in its history. “So this has an impact on a number of organizations up and down the valley — including small businesses and human-service agencies that may provide a service to the federal government in some way and come under the umbrella of being a federal contractor.

John Gannon

“When President Biden first issued his plan in early September, we told people, ‘let’s see what happens over the next 30 days.’ But now, we’re getting to a situation where employers have to begin planning and preparing.”

“It might even be retail-type product that is sold on a military base,” she went on, while detailing the broad scope of these measures. “This definitely has widespread implications.”

Beyond waiting — and perhaps hoping that the measure is delayed, which most experts say is possible but not likely — the best area employers can try to do is be ready, said Gannon, adding that, while it’s anyone’s guess as to just when the OSHA standard for companies with 100 or more employees will be issued, it will almost certainly be released before the end of the year.

“When President Biden first issued his plan in early September, we told people, ‘let’s see what happens over the next 30 days,’” he explained. “But now, we’re getting to a situation where employers have to begin planning and preparing.”

Indeed, the clock is certainly ticking on the Dec. 8 deadline for federal contractors, he noted, adding that anyone who takes a vaccine that requires two shots must wait several weeks after the first shot to get the second. And full vaccination, regardless of whether it’s a one-dose or two-dose vaccine, is not achieved until two weeks after the final dose.

“It can take employees at least 45 days, and that’s if they act as soon as possible, to make sure they’re vaccinated,” Gannon went on. “Meanwhile, employers are going to have to get testing programs in place and provide options for employees on how they get tested weekly if they are opposed to getting vaccinated.”

The logical next step for employers, if they haven’t done it already, is to determine their vaccination rates and thus get a handle on the scope of the problem they’re facing, he added.

“We’ve seen all sorts of numbers, but generally, employers fall somewhere in the 60% to 80% range,” he said. “And you’re allowed to ask people if they are vaccinated or not — several agencies have confirmed that there is nothing unlawful about that. You can’t ask them why, but you can generally survey your workforce population, and that should be the first step.”

 

Compounding the Problems

Flashing back to those days — it might even have been hours — after Biden announced his vaccination mandates, when the phone calls started coming in, Royal said the initial reaction was shock, followed by incredulousness.

“That’s because it represents a whole new layer of challenges for employers when they’ve already been navigating a number of challenges related to the pandemic, or just workforce-related issues,” she explained, adding that the overriding concern, beyond all the planning, logistics, and costs of meeting the new standards, regards the potential loss of valued employees at a time when workers are retiring and resigning at unprecedented rates (see related story on page 61), and replacing them has been increasingly difficult.

“Whether you’re in manufacturing or in human services, or are a professional service, there is a general worker shortage and shortage of prospects,” Royal noted, adding that the mandates, especially the one regarding federal contracts (because there is no provision for testing, only required vaccination), will make a serious problem that much worse.

Wise agreed. While she noted that the vaccine mandates for those companies in the listed categories relieve employers from having to implement such a polarizing policy themselves, it does bring a new and unwanted layer of challenge to the table, especially when it comes to workforce.

“They’re already hurting for staff as it is,” she told BusinessWest. “If they lose employees over this, that’s going to make it even harder for them to meet their customer demands and fulfill their orders.”

But there are other considerations, including the costs attached to all this and uncertainty over whether employers who don’t want to get vaccinated or tested can become eligible for unemployment benefits.

She said there has been no clear guidance on that, but she speculates that, if the federal government issues a mandate and an employee is unwilling to comply with that mandate, then the employee would not be eligible to collect unemployment benefits.

But that’s just one of many questions that remain unanswered at this juncture, she said, adding that employers of all sizes are pondering how to get ready for these mandates, but also just how seriously to take them, especially since the T in ETS stands for temporary.

“Apparently, under OSHA guidelines, unless OSHA makes it permanent, within six months this ETS will expire,” she said, adding that some employers may roll the dice and try to wait this out.

Indeed, while there are steep fines attached to the mandates — up to $13,653 per violation — Wise said some employers are wondering out loud just who is going to enforce all this.

“In my mind, this would be a risk that I, as a business owner, don’t think I’d be willing to take,” she told BusinessWest. “But there’s a piece to this that says, ‘how am I going to get caught?’

“OSHA isn’t going to be able to come in and audit every workplace, so there would probably have to be a complaint filed,” she went on, adding that, if an employee doesn’t want to get vaccinated, he or she is unlikely to file a complaint that their employer is not in compliance.

 

Bottom Line

Like Royal and Gannon, Wise said she’s never seen anything quite like the vaccine mandates when it comes to the many ways they might impact an employer.

“I’ve been in HR for more than 40 years, and I can say that there’s been nothing like this,” she noted. “There’s been a lot of regulations and guidelines that employers have to put in place — certain safety precautions, pay requirements, overtime laws — but there really hasn’t been anything that’s come down that has affected the individual and their bodies like this.”

Indeed, these measures are unprecedented in many respects, and they come at a time when beleaguered employers are already being challenged in every way imaginable.

Only time will tell what happens next, but it’s clear that employers will have their mettle tested even further.

 

George O’Brien can be reached at [email protected]