Biden’s vaccine mandate leaves businesses relieved but full of questions
By Lauren Hirsch, Stacy Cowley and Noam Scheiber
For months, Molly Moon Neitzel, founder and CEO of Molly Moon’s Homemade Ice Cream in Seattle, has debated whether to require her 180 employees to be vaccinated. On Thursday, when President Joe Biden announced rules that would mandate such requirements, she felt relieved.
“We have six to 10 who have chosen not to be vaccinated yet,” she said. “I know it makes people on their teams nervous.”
The new rule, which Biden has instructed the Occupational Safety and Health Administration to put in place by drafting an emergency temporary standard, will require companies with more than 100 employees to mandate that their workers be fully vaccinated or face weekly testing. The move, which thrusts the U.S. government and businesses into a partnership with little precedent and no playbook, will affect some 80 million workers.
Neitzel said she planned to comply with the order but was waiting for more details and a discussion with her team before deciding what that would entail. Like many businesspeople, she wants her employees vaccinated, but is uncertain what impact the new requirement will have on the company’s procedures, workers and bottom line.
Companies were already moving toward mandates before Biden’s announcement. In a recent Willis Towers Watson survey, 52% of respondents said they planned to require vaccines by the end of the year, and 21% said they already did.
But they have approached vaccination of their employees unevenly, and new federal requirements may amplify challenges they were already facing.
Religious exemptions are one example. In a recent poll of 583 global companies conducted by Aon, the insurer, only 48% of those that had vaccine mandates said they were allowing religious exemptions.
“Determining whether someone has a sincerely held religious belief, practice or observance is really tricky because it requires the employer to kind of get inside the employee’s head,” said Tracey Diamond, a partner specializing in labor issues at law firm Troutman Pepper.
If the federal mandate, when it is written, allows for religious exceptions, these kinds of requests “are going to skyrocket,” she said. “For larger employers where there’s lots and lots of requests, to do this individualized case-by-case analysis can be very time consuming.”
Some companies, including Walmart, Citigroup and UPS, have focused vaccine requirements on office workers, who tend to have higher vaccination rates than employees on the front lines. And companies in industries facing labor shortages have generally refrained from mandates, worried about turnover. Some employers said they were concerned that the new federal mandate could cause employees to quit.
“We can’t afford to lose anyone right now,” said Polly Lawrence, owner of Lawrence Construction in Littleton, Colorado.
Gireesh Sonnad, CEO of the software consulting firm Silverline, said he hoped the Biden administration would offer guidance that clarified how the new rules would apply to his roughly 200 employees, most of whom work remotely.
“How are we supposed to do weekly testing, if that’s the option people want to take, if I have people in almost all 50 states?” Sonnad asked.
Testing is the subject of many of the questions that executives are asking. Who picks up the cost of a test if employees opt out of vaccination? What types of tests will the mandate require? What is the appropriate documentation of a negative COVID-19 test? Will enough tests be available, given supply chain challenges?
Employers are also unsure what they will have to do to document, track and store information about their employees’ vaccination status. Already, companies have taken different approaches to verification — some requiring digital proof, others asking simply for dates and the brand of the shot.
At Bridgestone Americas, the tire maker’s Nashville, Tennessee-based subsidiary, office employees have been using internal software to log their vaccination status. The company wants to create a better system for employees who do not have access to laptops or smartphones, said Steve Kinkade, a spokesperson for the company.
“Do we have kiosks set up in manufacturing locations and common areas for people to log in this information?” Kinkade asked rhetorically. “These are the logistical things we still have to work out.”
The Biden administration has not provided many details on the new rule, including when it will go into effect or how it will be enforced.
Experts said that OSHA was likely to take at least three or four weeks to write the new standard, and that once the rule was published in the federal register, employers would most likely have at least a few weeks to comply.
OSHA may choose to enforce the rule in a number of ways. It could focus inspections on industries that it believes are problematic. It could also conduct inspections in response to news reports of outbreaks or worker complaints, or ask inspectors following up on unrelated concerns to check records for compliance with the vaccination rule.
But OSHA has only a small number of inspectors relative to the size of the workforce. A recent report by the National Employment Law Project, an advocacy group, found that it would take more than 150 years for the agency to conduct a single inspection of each workplace under its jurisdiction.
While the COVID-19 relief plan that Biden signed in March provides funding for additional inspectors, few if any will be hired and deployed by the end of this year.
That means enforcement is likely to be strategic — focusing on a tiny number of high-profile cases where large fines can attract attention and send a message to other employers. A workplace that failed to carry out the vaccination or testing requirement could in principle pay a fine for each worker affected, although OSHA rarely proposes such aggressive fines.
The administration did clarify what “fully vaccinated” would mean when it came to enforcing the new rule.
“Fully vaccinated is two doses of Pfizer, Moderna or a single dose of J&J,” Dr. Rochelle Walensky, director of the Centers for Disease Control and Prevention, said at a press briefing Friday.
“I anticipate over time that may be updated, but we will leave that to our advisers to give us some recommendations,” she said.