As the pandemic entered its 18th month in September, the federal government prepared new rules that would require businesses with 100 or more employees to ensure workers were vaccinated. For some observers, the process underway indicated an overreach that raised flags about whether precedents were being set that would undermine the autonomy of businesses for years.
The National Federation of Independent Business (NFIB) sent a letter on Sept. 14 to Secretary of Labor Martin J. Walsh asking that the agency give businesses an opportunity to comment on any proposed regulations. The normal process, which can take years before rules take effect because such input is sought, would be shortened to a matter of weeks or months under the Emergency Temporary Standard (ETS) authorized by the Occupational Safety and Health Act (OSH). The ETS bypasses public comment to expedite new rules.
“We have significant concerns about this expansion of federal authority—and this is an unprecedented expansion of authority for the Department of Labor.”
—Mitch Relfe, manager of government relations for the NFIB
“If employers are going to have to implement it, it really is valuable for the department to have their input,” said Mitch Relfe, manager of government relations for the NFIB.
However, the initial recommendations for mandate requirements were sent to the White House for review in October without detailed public comment. The primary regulations would require either that workers be fully vaccinated or that they produce a negative test result on at least a weekly basis before going to work, according to background information found at whitehouse.gov. About 80 million workers in private-sector businesses could be impacted.
“Our members are overwhelmingly opposed to it,” said Relfe, adding that the NFIB has approximately 300,000 members nationwide that are a mix of sizes and industries. “That speaks to the small-business owner mentality that they really want the freedom to make their own decisions. From what we are hearing from our members, there are a lot of general concerns, especially with the federal government exercising such broad authority under the OSH Act to try to implement what is a nationwide vaccine mandate for employers with 100 or more employees.”
Under the new rules, companies with fewer than 100 workers would be exempt. But concerns with the Administration’s proposal go beyond the immediate issues. “I can’t say I have a strong feeling that the mandate will go below 100, but it certainly could. You never can really say what the Administration will do next,” Relfe said. “Certainly, from our perspective, it’s always troubling when an Administration is exercising its authority like this and in a manner that they never have before and that is broad reaching.”
Support for Vaccines, Not Mandates
That is not to say that the NFIB is opposed to vaccinations, with Relfe emphasizing that the decisions should be up to the individual businesses. Indeed, other business groups such as The U.S. Chamber of Commerce and the National Association of Manufacturers (NAM) have strongly supported vaccination programs. NAM, however, has been concerned about how the details of the vaccine mandate would affect businesses.
“We look forward to working with the Administration to ensure any vaccine requirements are structured in a way that does not negatively impact the operations of manufacturers that have been leading through the pandemic to keep Americans safe,” NAM said in a news release. “It is important that undue compliance costs do not burden manufacturers, large and small alike.”
Earlier in the summer, the chamber released guidance about employers considering vaccine mandates of their own. In an August column, Stephanie Ferguson, senior manager of employment policy for the chamber, wrote that businesses have the authority to issue mandates but need to be careful about how they are handled. “In the end, employers should familiarize themselves with their state’s UI (unemployment insurance) laws and Equal Employment Opportunity Commission’s (EEOC) guidance when considering how to handle vaccine mandates and return-to-office plans,” Ferguson wrote.
Numerous companies and industries have done so, from airlines to retailers to health care networks to manufacturers. Over the summer, President Joe Biden announced mandates for federal agencies and contractors that took effect this fall, as well. “Since July, the share of job postings that require vaccination are up 90%. And we know these requirements work,” the Administration said on its website. Although more than 175 million Americans had been fully vaccinated, the Administration noted at the time that nearly 80 million who were eligible had not done so.
Challenges Expected
On Sept. 9, Republican National Committee (RNC) Chairwoman Ronna McDaniel said the Administration’s plan is an unconstitutional mandate and that lawsuits would follow.
“Like many Americans, I am pro-vaccine and anti-mandate,” McDaniel said. “Many small businesses and workers do not have the money or legal resources to fight Biden’s unconstitutional actions and authoritarian decrees, but when his decree goes into effect, the RNC will sue the Administration to protect Americans and their liberties.”
Federal court rulings this fall went against the Administration, but it wasn’t clear by press time whether the new rules would be implemented Jan. 4 as initially planned. The pushback has been strong in other areas. In October, Texas Gov. Greg Abbott issued an executive order that banned businesses from requiring COVID-19 vaccinations of employees. While supporting vaccines and saying that they are safe and effective, Abbott made the argument that they should be voluntary “and never forced.”
Similar thinking has been behind the NFIB’s stance. “At NFIB, our mission is to make sure our members are successful at owning and operating a business,” Relfe said. “So, we have significant concerns about this expansion of federal authority—and this is an unprecedented expansion of authority for the Department of Labor. Any time you set a precedent like that it is a serious concern.”
In surveys with its members, about 26% said they were asking workers if they were vaccinated and 83% said that they had no requirement for vaccinations. About 14% said they have considered mandating vaccinations, and 3% said they mandate vaccinations. And that is the way it should be, Relfe said. Each business owner needs to make the decisions that are best for that business.
“Just because something is not mandated does not mean that people aren’t going to be protected in the workplace,” he said. “A system where they are making the right decision for their workers doesn’t mean that people are not protected.”
Workforce Shortages
All of this couldn’t be coming at the worst time, with companies nationwide facing a crisis in filling open jobs, several observers said.
“This is a very tight labor market,” Relfe said. “Any time you are putting an extra barrier between the employer and the employee—and who can be hired—it is not going to make an already difficult situation any better.”
The NFIB, which began tracking labor trends 48 years ago, recently conducted a survey that showed that 50% of job openings have gone unfilled. “Everybody wants to be on the right side of the law,” said David N. Taylor, president and CEO of the Pennsylvania Manufacturers’ Association, which is affiliated with NAM. “The problem is this: We are in the middle of a workforce crisis. And people are not afraid to leave a job that they don’t want to do anymore.”
Operation Warp Speed—the program under the Trump Administration to get vaccines out quickly—was a success story that rivals the “moon landing or the opening of the Panama Canal,” Taylor said. “It’s an incredible testimony to America’s pharmaceutical industry and the American military.”
State and national leaders would have been wise to have focused on those successes and downplayed the politics if they had wanted to increase vaccination rates and reduce hesitancy, Taylor said. He stressed that he fully supports the vaccines and persuasive efforts to improve vaccination rates.
“Persuasion still is the best course,” he said. “The idea that all of this has been politicized is upsetting. Everybody who is medically eligible to get it should get it. But it is still a free country.”
Forced vaccinations will lead people to quit jobs when the country can’t afford to have people leave the workforce, he continued. “By putting manufacturers in a position where we have to be agents of the state—and disallow people for whatever reason—it is going to make a bad situation worse.”
Thomas A. Barstow is senior editor at FlexPack VOICE®.