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How businesses are handling vaccine rules with no federal mandates

Like many employers over the past year, LeMoyne-Owen College has felt the whiplash of changing vaccination rules.

Three times in the past six months, the historically Black institution in Memphis had to change its guidance, first requiring employees to get at least one COVID-19 shot in August 2021, and most did. A few months later, the Tennessee legislature effectively banned employers from instituting vaccine requirements. The college complied.

By the end of 2021, however, their guidance changed, this time as the federal government implemented its own requirements on workplaces with more than 100 employees. Then, once again, the vaccine requirement was dropped when the Supreme Court in January said the administration’s rule could not be enforced, and the administration withdrew the rule.

“We have stayed up to date and as things have changed, we’ve had conversations about how this could impact us as things stood or going forward,” said Idesha Reese, a spokesperson for the college. “We’ve just kept an eye on what happened.”

Employers across the country have found themselves navigating vaccine politics as state, local and national decision-makers offer their own, sometimes conflicting, guidelines. That includes trying to send a consistent message to current and future employees, as well as the people with whom they do business.

When the federal government initially introduced the rule that all businesses with more than 100 workers must institute a “vaccination or test” program, some employers breathed a sigh of relief, feeling it removed the burden of the decision. Others fought the rule with the backing of business associations and conservative state attorneys general; some feared a mandate would exacerbate existing worker shortages, or that testing unvaccinated workers would create an added burden for both employers and their employees. For some companies, the requirement was moot: Most of their employees had been vaccinated anyway.

The high court’s Jan. 13 ruling has suspended federal vaccine requirements for large employers for now. But as debate over vaccination rules continue on the state level and the omicron variant continues to spread, employers remain concerned about how to manage vaccination requirements and safety for their staff, while also maintaining their businesses and protecting their customers.

In late January, a federal judge in Texas blocked the Biden administration’s vaccine mandate for all federal employees, which was put in place in November. A federal appeals court said this month it would not block the lower court ruling.

Less than a week after the Supreme Court decision, research and consulting firm Gartner polled 389 company leaders and found that 47 percent already implemented, or are planning to implement, their own vaccine requirements.

California, which became the first state in the country last year to mandate vaccinations for school children, has been caught in a fierce battle over lawmakers’ push for stricter vaccine requirements in the state, including eliminating exemptions from those who don’t want to get vaccinated. Last month, the state updated its temporary emergency standards against COVID-19 to require employees be vaccinated and submit proof to employers; tests weekly after an outbreak; and compensation for employees who become sick from COVID-19 and cannot work.

The standards apply to employers regardless of size, but CalOSHA states if a workplace only employs workers covered under its “Aerosol Transmissible Diseases” standard, the emergency standards do not apply. The Aerosol Transmissible Diseases standard applies to workplaces like medical facilities and those employed in them, where “exposure from work activity” is expected. The state has levied financial penalties to different employers in the state for violating the temporary standards. For example, the state fined a number of Foster Poultry Farms, Inc. locations in the San Joaquin Valley for totals ranging from $77,000 to $96,000 for violations such as not reporting COVID-19 illnesses and even workers deaths from the virus.

Robert Moutrie, policy advocate with the California Chamber of Commerce, said the responsibility on the businesses to test those who are unvaccinated came alongside renewed COVID-19 protocols in the wake of the highly transmissible omicron variant.

The changes have been a lot for businesses to follow, he said.

“For businesses who have made it through the shutdown, and are now reopened and trying to operate, the changing regulations at the state and federal level just make it hard to know what you need to do,” Moutrie said.

WHAT THE COURT RULED

The Supreme Court decision on mandates for employers of 100+ workers was less of a ruling on individual rights versus public health and more of a restriction on federal administrative power, said Dorit Rubenstein Reiss, law professor at University of California Hastings College of Law.

The conservative majority on the high court found that the Occupational Safety and Health administration didn’t have the authority to force companies to implement a vaccine requirement.

“They basically said the power OSHA has is to regulate occupational hazards. This is a general hazard, it’s not special to the workplace, and therefore it’s outside of OSHA’s power,” Reiss said.

Meanwhile, the court’s three liberal judges dissented, saying OSHA has implemented regulations outside of the workplace in the past, and arguing that the pandemic gives OSHA emergency powers that Congress has authorized for the agency.

In the aftermath of the Supreme Court ruling against the vaccine-or-testing mandate, some employers said they would continue to require employees be vaccinated against COVID-19–inserting themselves into the public debate around vaccines.

In January, outdoor apparel brand Carhartt announced it believed vaccines are necessary to ensure a safe workplace and would keep its requirement in place. The company, headquartered in Dearborn, Mich., employs more than 5,500, though not all employees are based in the U.S. Its vaccine requirement was met with both public praise and criticism.

In a statement to PBS NewsHour, a spokesperson said: “Carhartt made the decision to implement its own vaccine mandate as part of our long-standing commitment to workplace safety. Our recent communication to employees was to reinforce that the Supreme Court ruling does not affect the mandate we put in place.”

“Carhartt fully understands and respects the varying opinions on this topic, and we are aware some of our associates do not support this policy. However, we stand behind our decision because we believe vaccines are necessary to protect our workforce.”

Many businesses have likely been reluctant to take a public stand on vaccinations one way or the other, said Bill Galston, senior fellow in governance studies at The Brookings Institution.

Galston said most employers likely do want their workforces to be safer by being vaccinated. But instituting a requirement has the potential to attract unwanted attention.

“Businesses rarely want to take sides in such disputes unless they’re absolutely forced to. Because if you do, you’re going to anger some potential customers and also subject yourself to various sorts of political pressures from parties or others who feel offended by the position to take,” he said.

WHAT DO BUSINESS OWNERS WANT?

Some businesses in Missouri say they made a vaccine requirement decision long before it became a legal issue.

“We very early on decided that companywide we mandated vaccines for employees,” said Ben Poremba, chef and owner of Bengelina Hospitality Group. “We are also mandating vaccines for our guests.”

The Bengelina Hospitality Group, which employs about 105 people, is made up of four restaurants, a pastry shop, a small market and some manufacturing operations.

The move to require vaccines for both workers and guests is something Poremba said came from inside the company.

“Many of our employees wanted a safer work environment and I was very attentive to that and sympathetic to the general feel that the more vaccinated people around us, the safer I will be to come work at our restaurants,” he said.

Poremba said business leaders should have “preempted any sort of government mandate and should have been at the forefront of doing this,” though he said his business would have a mandate in place regardless.

Business organizations in Missouri have been very vocal over the course of the pandemic about the importance of vaccinations. Last July, the Missouri Chamber of Commerce launched the “COVID Stops Here” initiative, which encourages businesses to reach at least a 70 percent vaccination rate. However, the Missouri Chamber was also against a mandate coming from OSHA.

“We believe the federal government should instead cooperate with the employer community to encourage vaccination and support employers that exercise their legal right to require vaccination. It’s unfortunate that this new federal policy will likely further divide public sentiment around COVID-19 vaccination,” said Daniel P. Mehan, President/CEO of the Missouri Chamber when the mandate originally became public last November.

Navigating controversy over vaccine mandates is not yet over for Missouri businesses however, in January some business groups voiced disagreement during a hearing over legislation proposed by state Republicans that would limit business owners’ ability to implement their own COVID-19 mandates, one of which would make employers liable if an employee had adverse effects to the vaccine.

Recently, several large companies paused their vaccine requirements, including Amtrak and General Electric.

Starbucks, which employs 228,000 people nationwide, said on Jan. 19 it was no longer requiring its workers to get a vaccine, or share their vaccination status, a policy it had implemented ahead of OSHA’s rule. In an email to employees announcing the end of its vaccine requirement, shared with the PBS NewsHour by a Starbucks spokesperson, Chief Operating Officer John Culver said the company believes “strongly in the spirit and intent of the mandate” and encourages everyone to get vaccinated and boosted.

Culver also said Starbucks would continue to follow all laws and regulations.

Galston, the Brookings senior fellow, said, “The default setting for most businesses is: Don’t get pushed into taking a position unless you have to, or unless it’s clear that the overwhelming weight of public sentiment has shifted to one side of the argument.”

Businesses also have to worry about how requirements will affect hiring. Instituting requirements might drive some employees to quit, leaving employers scrambling to fill positions, Galston said.

A federal mandate such as the one struck down by the Supreme Court would have eliminated that concern by putting all businesses on equal footing, he added.

It’s possible some employers would have preferred for the federal government to take the onus of making vaccine decisions, said Justin Terch, president of Terch & Associates, a human resources consulting company in Duluth, Minnesota. But in his experience, most business owners didn’t want the logistical complications of implementing a vaccine-or-test program.

By his estimation, 70 percent of businesses-owners in north Minnesota and Wisconsin, where he works, opposed the OSHA rule, as were a good number of employees.

Employers already have a difficult time finding and retaining staff, Terch said. “When we add in additional barriers to that employment experience it makes it even more challenging,” Terch said.

“I think most employers want to have a safe work environment. I think most employers are vaccinated and encourage their employees to be vaccinated. I don’t see the ideological struggle that you might hear about in the media,” said Terch, who is also the legislative affairs director for Minnesota for Society for Human Resource Management.

“The question [for employers] is: ‘Do I want to be babysitting everybody’s left arm?’”

WHAT DO EMPLOYEES WANT?

According to a PBS NewsHour/Marist poll conducted in September, 56 percent of Americans were in favor of vaccine-or-testing rules for businesses with over 100 employees. Meanwhile, nearly 70 percent of young people ages 13-29 support vaccine mandates for in-person learning or work, according to a survey conducted by the NewsHour and Generation Lab.

National polls since then indicate feelings about vaccine mandates have shifted very little — with 54 percent and 52 percent of Americans supporting employer vaccination requirements, according to polling from Axios-Ipsos and the University of South Florida-Florida International University, respectively.

For a couple months near the end of last year, Al, a supervisor at a financial institution’s call center, had returned to work in person at his employer’s Memphis office, which he estimates has around 1,000 employees.

Al, who asked to only be identified by his first name because he is not authorized by his employer to speak to the media, was encouraged when large corporations started implementing their own vaccine requirements, he said.

“My thought was, if people are on the fence, it will get them vaccinated. And so I thought if this mandate went through, it would be a good way to get people vaccinated that still [hadn’t been].”

His company, which has thousands of employees nationwide, does not have a vaccination requirement, he said.

He’d hoped that the OSHA rule on vaccination or testing would allow companies to implement vaccine requirements without opening themselves up to vitriol from employees or customers.

“To me, what was proposed was a good way of doing it, and kind of what they’d planned on for my company. You don’t have to have a vaccination – some people can’t, some people simply choose not to. But if not, then take a test so that you’re not coming in and making other people sick,” he said.

Most of his location’s employees had been coming to the office once a week. With the rise of the omicron variant, his company paused a planned increase in in-person work. But Al said he wishes more people would get vaccinated, especially in Memphis, where only 58 percent of eligible residents are vaccinated.

Back in California, Moutrie at the state’s chamber of commerce said a number of large employers were already requiring vaccinations as part of their operations.

Officials at the largest Fresno area hospitals, for example, required vaccinations for its staff as early as last fall. The majority of workers were vaccinated by the deadline. Some hospitals issued notices that workers would be terminated unless vaccinated.

Moutrie said businesses he’s spoken with have also experienced loss of workers, but for the most part, it has not been a significant number.

For now, businesses are covered under CalOSHA’s regulations on COVID-19 safety. Under those standards, if an employer does not wish to ask about vaccination status of workers, “the employer must treat all employees as unvaccinated.”

Still, Moutrie said the chamber encourages everyone to get vaccinated.

“I think that is the simplest, most cost effective and best way for us to get out of the pandemic,” he said.