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Tensions mount as employers await a court decision on Biden’s vaccine mandates

By December 13, 2021December 17th, 2021No Comments

(This article originally appeared in the Philadelphia Inquirer)

Is your business complying with President Joe Biden’s vaccine mandates? Unfortunately it’s not an easy question to answer for most employers.

In early November, President Biden issued new rules for employers regarding COVID-19 vaccinations and testing. These rules are scheduled to take effect on January 4 and will be enforced by the Occupational Safety and Health Administration, or OSHA.

The President’s directives mandate any private company that employs more than 100 workers to either require workers to show proof of vaccination (two doses of Pfizer or Moderna, or one dose of Johnson & Johnson) or to produce a negative COVID test on a weekly basis. Although employers are not required to pay for the tests, they may have to do so because of other laws or collective bargaining agreements.

In addition to these mandates, employers are also required to remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a health-care provider. Employees who are not fully vaccinated must also wear a face covering when indoors or when occupying a vehicle with another person for work. The new rules also affect businesses who do work under federal contracts by mandating them to require vaccinations.

Employers must also communicate this new health policy to all employees and are subject to additional reporting requirements. Failure to comply comes with steep fines: up to $13,653 for each serious violation, and as high as $136,532 for any employer who deliberately disregards the mandate.

But here’s the thing: everything’s on hold. That’s because OSHA is waiting on a decision by the U.S. Sixth Circuit Court of Appeals on a handful of challenges contesting the legality of the President’s orders. His mandates regarding federal contractors have been suspended for similar reasons. Regardless of the appeals court’s decision, most legal experts expect the case to be decided by the U.S. Supreme Court, and none of this is going to happen right away.

This uncertainty is creating headaches and concerns among employers in the area.

“What we’re seeing is a tremendous amount of stress among our clients,” said Meg Eynon, an executive vice president at The Payroll Factory in Malvern, a firm that serves hundreds of regional small- and medium-sized companies. “They’re really concerned that they’ll lose employees, and if this mandate goes through, some people will just walk off the job and say, ‘I don’t want a vaccination and so I’m done.’”

So what can businesses do in the meantime?

“We’re just proceeding in good faith as if this is going to happen,” said Jim Devine, a practice leader in the human resources consulting group at Univest Insurance in Lansdale. “Whether or not this goes into effect in January or at some point thereafter, we’re fully committed to the mandate.”

Devine’s company, like many others, is preparing now. They’ve done this by creating a policy and communicating it to their employees. (If you need help doing this, then you’ll find customizable templates to download from OSHA’s website as well as fact sheets and guidance for implementing in both English and Spanish.)

Companies with more than 100 employees are already identifying those who are fully vaccinated and requesting documentation from them. They’re also ascertaining those employees that choose not to be vaccinated and are working with them to accommodate a schedule and a location for weekly tests.

“Many of our clients have been doing informal surveys to just get the temperature so that they know how their employees feel,” said Eynon. Some are doing educational meetings to try and coax people that are vaccine hesitant.

“It’s a very difficult position to be in for an employer,” she said. “You certainly don’t want to be pressuring anyone.”

Has there been much pushback? Not according to Nick Araco Jr., who is the CEO of AchieveNEXT, a human resources analytics and strategy firm based in Wayne.

“Most of the finance and human resources leaders we work with are requiring vaccinations,” he said. “Most expressed concern about what to do with resistance — but none said that they had actually encountered any serious complaints from their employees or customers.” Araco said the fear of an anti-vax reaction in mid-market enterprises “seems to be overblown.”

Devine agreed. “Everybody understands that this is something we need to do to protect each other,” he said. “So we have a good culture that way.”

Eynon, however, is finding that many of the employees at her clients are split down the middle when it comes to vaccinations. “Half of the owners of companies are sort of eager for the mandate to be in place and take the pressure off,” she said. “The other half are definitively against having an employer enforcing the mandate.”

Are there any alternatives or workarounds?

Employees that work from home or remotely may not be subject to the President’s order so allowing some of these workers — where possible — to be permanently remote may help mitigate the requirements. In addition, a handful of my clients are considering reclassifying some employees as independent contractors, but they have to be careful to make sure they are in compliance with specific rules.

While most employers in the area are nervously awaiting the resolution of this issue, some are embracing the President’s mandates as a recruiting opportunity.

“We have a number of clients who have embraced vaccination mandates as a good and necessary thing — something that will attract employees and customers and not something that will repel them,” said Araco. “I recall one of our members saying that he would personally and happily escort any unvaccinated employee off the premises.”

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