The Rush to Influence Federal Vaccine Rules

The Biden administration is steadily working to finalize the rules for its proposed COVID-19 vaccine mandate that will require at least 80 million U.S. workers to be vaccinated or test negative as a condition of employment. At the same time, a broad swath of businesses, labor unions, and conservative groups are working just as furiously to shape those rules to their own best advantage before they go into effect.

As reported by the Washington Post, the Department of Labor (DOL) and the Office of Management and Budget (OMB) have been taking meetings with a small army of industry, labor and conservative advocacy groups, all of whom are seeking to influence, delay or even halt the mandate rollout. The DOL’s Occupational Safety and Health Administration (OSHA) is tasked with developing and implementing the final rules.

Major business groups meeting with DOL or OMB include the U.S. Chamber of Commerce and the National Retail Federation, while reps from the AFL-CIO have come in from the labor sector. Conservative think tanks like Americans for Prosperity, a Koch-backed organization, and the Ethics and Public Policy Center have also had or requested meetings.

Working Out Details of Biden’s Six-Part Vaccine Plan

Biden announced the six-part plan on September 9^th. It addresses many aspects of combatting the COVID-19 virus – which to date has killed 731,000 people in the U.S. and almost 5 million worldwide - including a requirement that employees at private businesses with 100 or more workers all be vaccinated or test negative at least once a week. Companies face fines up to $14,000 for noncompliance, while workers could face suspension or termination.

But there are a multitude of details to be worked out within those basic parameters.

For one, how would the 100-worker limit actually be applied? Do those workers all have to be at the same site, or will the total be cumulative across the company’s entire workforce? Will part-time or independent contract workers be counted in that mix?

“It’s not as simple as saying we have 100 employees and that’s the end of it,” Law360 senior reporter Vin Gurrieri told the Law360 Pro Say legal podcast. “What if you have 50 full time employees but then you also have 100 various contractors on staff? There’s any number of variations you can think of.”

Another key question is who will pay for the testing – workers, employers, or perhaps a health insurance provider? Should a company set up testing on site? And if a worker has to leave the workplace, or opts to do it during off-hours, who pays for the worker’s time? Will that worker be allowed to stay on the job while waiting for test results? And how about the extra work it will take employers to track each employee’s vaccination or testing status?

“There are a lot of steps to this process other than just an employee getting tested every week,” Gurrieri said. “There are a lot of administrative steps that employers are going to need to follow.”

Some of the big business groups, including the U.S. Chamber, are pushing hard to ensure workers are required to pay for their own testing.

“A lot of our members feel strongly that the vaccine is widely available, it is free, and so if a person opts not to be vaccinated potentially the onus of the test can and should fall on the employee who has made a choice not to vaccinate,” Robyn Boerstling, a National Association of Manufacturers vice president, told the Associated Press.

She said employers should pay for testing only if an employee has a medical condition or a “proven and true” religious reason for seeking an exemption.

Will Vaccine Mandate Lead to Worker Shortage?

All of which has many employers sweating the possibility that anti-vaccine workers could leave in droves, undercutting an already tenuous labor force right as we move into the holiday shopping season.

“Many of our members are concerned about the potential loss of employees,” Kevin McKenney, director of government affairs at the National Lumber and Building Material Dealers Association (NLBMDA), told the Post. “Many have heard from their employees, who said they’d find employment elsewhere, or said we’re just going to go to another company to look for other work — that they’d rather leave than undergo the requirement.”

Marc Freedman, vice president for employment policy at the Chamber of Commerce, further noted the impact the worker shortage is having on the nation’s supply chain backlog.

“We really stressed the concern about employers losing employees, and what that would mean in the context of current supply-chain challenges and the upcoming holiday season,” he said. “You could start to see some very serious disruptions.” 

Is GOP Playing Politics with Virus?

Not surprisingly, the vaccine proposal has drawn a fierce backlash from Republican-led states. Arizona Attorney General Mark Brnovich (R) has filed suit seeking to block the mandate, with two dozen Republican AGs in all vowing legal action of their own. A group of 23 federal employees, mostly military personnel or contractors, has also filed a class action suit challenging the proposal.

Texas Gov. Greg Abbott (R) took it a step further earlier this month, issuing an executive order that bars companies or any other Lone Star State private entity from requiring vaccines.

The Biden administration dismissed Abbott’s order, with White House press secretary Jen Psaki saying the supremacy clause of the U.S. constitution long ago settled the matter of federal policy superseding state laws. She also accused Abbott of putting his own political ambitions over the health of his state.

“I think it’s pretty clear when you make a choice that’s against all public health information and data out there, that it’s not based on what is in the interests of the people you are governing. It is perhaps in the interest of your own politics,” she said.

Politics appears to be much less of the issue for business leaders than logistics. Even with their misgivings about the eventual rules, several large employers have voiced support for the mandate, and many have already imposed their own company-wide vaccine requirements.

Others, however, still lament the impact managing the mandate could have on their operations.

A group of Michigan employers launched a coalition last week called Listen to MI Business asking the Biden administration to reconsider. At a press conference, Warren Call, CEO of the Traverse City Chamber of Commerce, said the mandate has “the right goal, but it’s the wrong tactic to get there.”

Call applauds employers who have encouraged their workers to get vaccinated but questioned placing the onus on employers to force vaccinations on hesitant employees.

“We know that vaccines save lives and widespread vaccination is our best bet for a strong economic recovery,” he said. “But the key thing is that the burden of ensuring a healthy and robust environment post pandemic is everyone’s responsibility. Employers should not be asked to shoulder this responsibility alone.”

The Vaccine Carrot vs. Stick

For all the talk of mandates, there are still some entities using more carrot than stick. At least 19 states have at some point offered their own cash incentives, many through lottery-style drawings, to prompt people to get vaccinated.

The most recent came last week in Minnesota, where Gov. Tim Walz (D) announced a plan on the 18^th that offers Gopher State youth between 12 and 17 $200 for getting vaccinated, after which they are entered into a drawing for a chance to win $100,000 in scholarships and other prizes. 

New York City Mayor Bill de Blasio followed suit two days later when he announced an expansion of the Big Apple’s citywide mandate to include all public employees with no test-only opt-out. To soften the blow, the city will also cough up $500 to workers who get their initial shot at a city-run vaccination site. In recent weeks, Phoenix and St. Louis offered residents gift cards worth $100-$150 for getting the shot.

But those who think prizes are always a better play than coercion might first consider a recent survey conducted by Andrew Friedson, a researcher at the University of Colorado Denver, who said those efforts were mostly for naught.

“Statistically speaking, our research points to a disappointing outcome — that is, there was no significant association found between a cash-drawing announcement and the number of vaccinations administered after the announcement date,” Friedson said in a press release. “This shows a clear need to reassess how we are encouraging individuals to receive the COVID-19 vaccine.”

There is no clear indication of when the final rules on the Biden administration’s vaccine mandate will be released, though it has been speculated they will be finalized and opened to public comments by the end of October.

--By RICH EHISEN

Nearly Half of States Vow to Fight Federal Vaccine Mandate

The attorneys general of 24 states sent a letter to President Biden last month stating they would “seek every available legal option” to block the administration’s proposed rule requiring businesses with 100 or more employees to require their workers to be vaccinated for COVID-19 or submit to weekly testing.