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Biden's vaccine mandate gives employers cover when implementing vaccine requirements

Robert Channick, Chicago Tribune on

Published in Business News

President Joe Biden’s newly issued mandate that companies with 100 or more employees must require vaccinations or weekly COVID-19 testing among their workforce may be just what the doctor ordered for a number of Chicago-area companies, including WeatherTech, the southwest suburban car floor mat manufacturer.

The company, which has 1,700 employees on its sprawling Bolingbrook, Ill., campus making everything from dog bowls to cellphone holders, has no vaccine or testing mandates in place, despite having “several very sick employees” and one death from COVID-19, according to WeatherTech founder and CEO David MacNeil.

MacNeil, a strong proponent of COVID-19 vaccinations for his employees, said the legal landscape for imposing a company mandate was unknown — at least before Biden announced his proposed mandate Thursday.

“I welcome government help in getting the job done,” MacNeil said Friday.

Under Biden’s plan, workers must either be vaccinated or tested weekly, with businesses providing time off for employees to do either. The proposed rules, which have yet to be drafted by the Occupational Safety and Health Administration, would carry fines of up to $14,000 per violation for the businesses, and cover about 80 million private-sector workers.

Some labor experts expect the vaccine mandate, which may take weeks to roll out, to be challenged in court. But it may provide an immediate catalyst for businesses seeking guidance — and legal backing — on implementing what has proven to be a potentially divisive requirement.

“I think companies have been waiting for this,” said John Challenger, CEO of Chicago-based outplacement firm Challenger, Gray & Christmas. “Companies will flock to get this done. I think there will be a real sense of relief. They’ve been looking for cover.”

United Airlines is among a number of large companies that have taken the lead in implementing vaccine mandates for employees as COVID-19 cases rise amid the spread of the delta variant. Other companies requiring proof of vaccination include CVS, Google, Microsoft, Facebook, Delta Air Lines, Tyson Foods and Walgreens.

Biden’s mandate would incorporate a much broader swath of companies, providing an incentive for moving forward and penalties for violating what would be an enforceable workplace safety violation.

Mark Denzler, president and CEO of the Illinois Manufacturers’ Association, said the “devil is in the details” of the yet-to-be released OSHA rules.

“While no federal rule has been promulgated, we do have concerns about significant financial penalties that could be forced on employers who are already doing their best to navigate constantly changing rules and guidance,” Denzler said in an emailed statement Friday.

Jim Sullivan, a Washington, D.C.-based labor attorney and the former chair of the Occupational Safety and Health Review Commission during the Trump administration, said OSHA is expected to create an emergency standard and make the rule effective within weeks. He then expects it will be immediately challenged in court and “ultimately shot down.”

At this point, many questions remain about the costs to employers, the specific requirements and how the mandate might be enforced, Sullivan said.

“It’s just an effort by the administration to use OSHA as a mechanism to get people to require their employees be vaccinated,” Sullivan said. “I think what their intent is, is to have people just do it. And they’re not going to do it through enforcement.”

An August survey conducted by Littler, a labor and employment law firm, found that only 9% of employers are currently mandating vaccines for some or all of their employees, but nearly two-thirds are encouraging employees to get the vaccine.

 

Barry Hartstein, a Chicago-based attorney for Littler, said the Biden mandate will likely encourage more companies to take their policies from voluntary to mandatory.

“This is one more basis that may give those who are inclined to have mandatory vaccinations to say it’s time,” Hartstein said. “If they weren’t in favor of vaccinations, it may still be a wait-and-see approach.”

For employers still processing the proposed vaccine mandate, reactions were generally muted, but supportive.

Ford requires every employee to wear a mask inside its work facilities, but its vaccination policy is mostly voluntary, Ford spokeswoman Kelli Felker said.

“Ford continues to strongly encourage all employees who are eligible to get vaccinated,” Felker said in an emailed statement Friday. “We believe the vaccine plays a critical role in combating the virus and have already designated some roles where we require the vaccine. We will be assessing the new executive actions to determine what adjustments need to be taken to our current vaccination policy as we continue to prioritize the safety of our employees.”

Insurance giant Zurich North America will act once it reviews forthcoming guidance from the Safer Federal Workforce Task Force and a rule from the Occupational Safety and Health Administration, spokesperson Jennifer Schneider said in an emailed statement.

State Farm Insurance also does not have a vaccine mandate for employees and on Friday the company indicated it’s taking the same wait-and-see stance as Zurich. “Right now our protocols remain the same until we learn more,” State Farm spokesperson Gina Morss-Fischer said in an email.

Food service giant US Foods does not currently require vaccinations.

“The health and safety of our associates and customers remain our top priority,” the company said in a statement. “We will review the executive orders and related OSHA requirements to determine the appropriate next steps.”

While vaccine and mask mandates have become politically polarizing, WeatherTech’s MacNeil believes preventing the spread of COVID-19 is a good business practice that should cut across party lines.

A Republican megadonor who contributed $1 million to President Donald Trump’s January 2017 inauguration, MacNeil said he was among the first to be vaccinated in November 2020 as a participant in the Johnson & Johnson trials. He called the results “nothing less than amazing” after staying COVID-free, despite repeated exposures to people who tested positive, including his own employees.

MacNeil’s biggest concern about the Biden vaccination mandate is that it doesn’t go far enough.

“Do employees in companies with 99 or less employees not deserve to work in the same level of safety as employees of larger companies?” MacNeil said. “The sooner all of us are vaccinated, the sooner we can all get back to normal life and business here in America.”

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