American businesses — already overburdened by pandemic hardships— may be facing a host of new challenges due to Joe Biden’s recent vaccination mandate for federal workers and certain employers. While some say the new rules may not end up making a marked difference in the number of vaccinated Americans, it could, on the other hand, be the gift employers have been waiting for since the advent of the vaccines.
In what is arguably the most expansive move of the COVID -19 pandemic, the Biden administration mandated this month that employers with more than 100 or more employees to either require employee vaccination or make them undergo weekly testing before coming to work. Although this mandate is only one part of a six-point comprehensive strategy, it is clearly the foundation of a broader plan to bring America out of the pandemic.
The EEOC Greenlight
Private employers have been able to mandate vaccines since December 2020, when the Equal Employment Opportunity Commission (EEOC) greenlighted employer mandates in certain circumstances without running afoul of key federal anti-discrimination laws. Limited exceptions exist for workers who refuse the vaccine for religious reasons or who have a disability or medical condition that prevents them from inoculation.
This, of course, has opened employers to a range of potential problems, including claims that employers failed to reasonably accommodate vaccine exemptions, or that they exceeded the allowable inquiries into who was or was not vaccinated. Unions also claimed that employers were unfairly changing working conditions without negotiating.
In short, employers have been left hanging out there exposed.
Needed Cover
The Occupational Safety & Health Administration (OSHA) is the true foundation of the Biden plan, as it is involved in the issuing of an Emergency Temporary Standard (ETS) that allows the agency to enact regulations for immediate enforcement if worker safety is in “grave danger.” In a recent article for Bloomberg Law News, Ruiqi Chen suggests that many companies are embracing the new mandate and see it as finally providing the much-needed cover for ensuring that their employees are working in a safe environment.
The consensus, particularly from those companies that have already mandated vaccines after last year’s EEOC guidance, is that it will be much easier once OSHA specifies the requirements and uncompliant companies face penalties.
It is the air cover they have desperately needed. In fact, the President met with a number of leaders from some of the biggest companies in America to ensure their buy-in. Many of those companies had experienced significant COVID outbreaks, deaths, and resulting lawsuits.
The New Rule Creates Uncertainty
However, not all employers are so eager to embrace the new mandate. It is estimated that the rule will impact 80 million workers and could present a logistical and cost nightmare for employers. Notably, the mandate will also require employers to give workers paid time off to get vaccinated and recover from any vaccine-related side effects, which could be problematic in a time when many businesses are already finding it difficult to hire and retain employees.
It also comes with its own set of questions for employers. For example, all employers covered by OSHA must comply, but who is “all?” Well, that would include office-based employers — many of whom likely won’t even realize that they must be OSHA compliant — as well as law firms, financial institutions, insurance companies, and other professional work environments. Will remote workers be covered? Will employers be required to collect proof of vaccination? What type of testing will be required and who will administer it? Will unionized employers still have to bargain over compliance?
And, of course, there are the legal challenges. Several states have already sued to block enforcement and some individual and class action lawsuits are beginning to make their way through the system.
Employers Must Flex
There is no doubt that this federal mandate will pose new challenges for employers already reeling from the impact of the pandemic. As I discuss in my book, Flex: A Leader’s Guide to Staying Nimble and Managing Transformative Change in the American Workplace, however, employers who are able to remain flexible and adapt will ultimately be rewarded by the market.
Therefore, businesses that take constructive steps to comply with the OSHA rule will in the long run likely see less litigation, better retention, more recruiting success, and safer work environments for their employees.
______________________________________________________________________________________________________________________
Rick Grimaldi
A partner a Fisher Phillips, Rick is the author of FLEX; A Leader’s Guide to Staying Nimble and Mastering Transformative Change in the Workplace. Based on his thirty years of working with employers large and small, Rick’s seminal work provides a blueprint for all employers to successfully navigate the incredible changes occurring in the workplace that impact everything from hiring to terminations, and all the issues that occur in between.
______________________________________________________________________________________________________________________
