The issue of vaccine mandates has been a delicate balance for employers, weaving in politics, health and privacy. But the government has put increasing pressure on employers to play a role in helping to vaccinate the country — and executives are desperate to get back to a degree of normalcy.
On Thursday, President Biden said the Occupational Safety and Health Administration was drafting a rule mandating that all businesses with 100 or more workers require their employees to either get vaccinated against the coronavirus or face mandatory weekly testing. That move would affect some 80 million workers.
Even before that announcement, mandates and inducements by city, state and federal governments, as well as full Food and Drug Administration approval of the Pfizer-BioNTech coronavirus vaccine for people 16 and older, made it easier for executives to go ahead.
The specifics have not yet been made public, but the president said two new requirements would apply to businesses with 100 or more employees: They must require that workers get vaccinated against the coronavirus or be tested at least once a week, and they must give workers paid time off to receive the vaccine and recover from any side effects.
Lawyers said Thursday that it was not immediately clear whether the rule would apply to all employees or only those who work in company offices or facilities.
Does OSHA have authority to do this?
OSHA has the authority to quickly issue a rule, known as an emergency temporary standard, if it can show that workers are exposed to a grave danger and that the rule is necessary to address that danger. The rule must also be feasible for employers to enforce.
Such a standard would pre-empt existing rules by state governments, except in states that have their own OSHA-approved workplace agencies — about half the states in the country. States with their own programs have 30 days to adopt a standard that is at least as effective, and that must cover state and local government employees, such as teachers. Federal OSHA rules do not cover state and local government employees.
The legal basis for a challenge is likely to be weakest in states that are directly within OSHA’s jurisdiction. Among them are some of the states that have recently been hardest hit by Covid-19 and where politicians have been resistant to mandates — such as Texas and Florida.
“I think that the Department of Labor probably is in good stead to be able to justify its mandate for health and safety reasons for the workers,” said Steve Bell, a partner at the law firm Dorsey & Whitney who specializes in labor and employment.
“They’ve got a broad pretty solid basis for saying: ‘We’re here to protect the workers, and this is part of our purview, and we think that this is something that will protect employees,’” he said.
How extensive are company mandates already?
Corporate vaccine mandates began to roll out substantially in late July, shortly after the Biden administration announced that it was requiring all civilian federal employees to be vaccinated against the coronavirus or to submit to regular testing and other strict requirements. Walmart and Disney led the way, followed by others including Uber and Google. When the F.D.A. granted its approval on Aug. 23, more mandates came flooding in from Goldman Sachs, Chevron and others.
Still, many are not comprehensive. Companies like Walmart and Citigroup have mandates for their corporate employees but not for frontline workers. Many companies are dealing with labor shortages and varying levels of vaccine hesitancy across state lines.
In a recent Willis Towers Watson survey of nearly 1,000 companies, which together employ almost 10 million people, 52 percent of respondents said they planned to have vaccine mandates by the end of the year, compared with 21 percent that said they already had vaccine requirements.
How are companies carrying out mandates?
The approach to mandates has run the gamut. Some, like Tyson Foods, which is requiring vaccines for its entire U.S. work force, have said that vaccines are a condition for employment. United Airlines has said it will fire employees who do not abide by the airline’s vaccine mandate or get an exemption; those who are exempt will be placed on temporary leave, in many cases unpaid.
Others, though, have worked a degree of flexibility into their requirements. Many, like AstraZeneca, have allowed employees with religious or medical exemptions to undergo weekly testing as an alternative to vaccination. Some, including UBS, have said employees who do not want the vaccine may work from home.
A recent poll by Aon of 583 global companies found drastically different policies. Of employers that have vaccine mandates, 48 percent said they were allowing for religious exemptions; just 7 percent said they would fire a worker for refusing to get vaccinated.
What are companies doing about unvaccinated employees?
Companies have been offering incentives to persuade workers to get the vaccine. Some, such as Kroger, have offered bonuses, while others have provided vaccinations in the workplace and additional paid time off to increase inoculation rates.
But others have been using deterrents, including loss of employment. Delta Air Lines, for example, has been requiring unvaccinated employees to pay an extra $200 a month to stay on the airline’s health plan. Other companies have been restricting office entry for those who are not vaccinated.
Workers who are unvaccinated because of a disability or conflicting religious beliefs have been told that they must follow strict safety guidelines like regular coronavirus testing, masking and social distancing. Some are allowed to work remotely.
How does the law cover vaccine mandates?
Companies are legally permitted to make employees get vaccinated, according to guidance from the U.S. Equal Employment Opportunity Commission, though a number of states have proposed legislation limiting the ability to mandate for employees or guests.
Employers are allowed to ask about a worker’s vaccination status, which is not protected by the Health Insurance Portability and Accountability Act, known as HIPAA. The law, which protects a patient’s confidential health information, applies only to companies and professionals in the health care field.
Do you run or work at a business that will be affected by the new vaccine mandate? If so we’d like to hear from you. Email Lauren.Hirsch@nytimes.com and please let us know how to reach you if we need to learn more.
Source: nytimes.com
