Get ready for the workplace vaccination wars

With the economy wobbling amid the Delta coronavirus surge, President Biden has chosen not to require every American to get vaccinated. Instead, he’s ratcheting up the pressure by pushing the burden down to employers.

On Sept. 9, the White House announced several new rules and orders meant to compel some 80 million unvaccinated adult Americans to finally get their shots. "We're in a tough stretch," President Biden said in a televised address from the White House. "A distinct minority of Americans supported by a distinct minority of elected officials are preventing us from turning the corner." 

To get to the corner, a new Labor Department “emergency temporary standard” will require all companies with 100 employees or more to assure all workers are vaccinated against the coronavirus, or test unvaccinated employees at least once a week. And the rules will get stricter for federal employees and those who work for contactors, who must now get vaccinated, with no option to choose regular testing instead. All health care workers at facilities that accept Medicare or Medicaid will have to get vaccinated without the testing option, as well.

It’s the most muscular government effort to force shots into arms, so far, covering about 100 million workers (including many who are already vaccinated). “This is to protect our economic recovery,” a senior administration official told reporters on Sept. 9. “We’re making sure Delta doesn’t undo this progress.”

A prudent middle ground

Vaccine resisters will undoubtedly gripe, but Biden is seeking a prudent middle ground between doing nothing and launching a nationwide vaccine mandate. Continuing on the current course, with no change, would risk prolonging an economic slowdown that has already begun, with economists cutting growth estimates for the second half of 2021 as consumers and businesses retrench. But going as far as a government mandate could create unneeded turmoil in a rowdy electorate over a rule that would be impossible to enforce, anyway.

Delegating the job of boosting vaccinations to employers won’t be an airtight solution. But it will create a pragmatic mechanism for incentivizing vaccinations and verifying that they happen. It may also help companies in a way, by taking the decision on whether to require vaccines out of their hands. CEOs who may have been on the fence about requiring their employees to get shots can now tell their workers they have no choice — the feds insist.

Some big companies have already decided to require vaccinations of all U.S. employees, including United Airlines (UAL), Facebook (FB), Salesforce (CRM), BlackRock (BLK), Cisco, and Anthem. Many others have partial vaccine requirements, such as for new hires. Delta Air Lines (DAL) adopted the novel approach of charging unvaccinated workers an extra $200 per month for their health insurance premiums, to account for the added cost of additional illnesses and hospitalizations.

Smaller companies that aren’t routinely in the spotlight are less likely to require vaccinations, and some are in parts of the country, such as the South, where workers may object to vaccine requirements. There are likely to be some interesting case studies exploring how enforceable the new rule will be. Some companies may loudly reject the new rule, while others will probably tacitly ignore it. The White House says the Occupational Safety and Health Organization, OSHA, will enforce the rule as it does other safety regulations. Fines can hit $14,000 per violation.

But it’s hard to foresee OSHA going after smaller companies like that in an environment where there’s already profound hostility toward government in some quarters. As for federal workers who refuse to get vaccinated, the senior administration official said they “will go through the standard HR process, including counseling on the safety of the vaccine and progressive disciplinary action.” The official didn’t go as far as saying vaccine refusers would be fired.

Most companies requiring vaccines are giving workers a couple of months to get their shots. The Labor Department plans to do the same once it drafts the emergency rule, which isn’t ready yet. Federal employees will have about 75 days to get vaccinated, so that could be the same timeframe for employers once the rule is finalized in a few weeks. The final deadline might not arrive until 2022. New rules will also require employers to provide paid time-off for most workers to get vaccinated, so they don’t have to go on nights or weekends or miss a paid shift.

The vaccine rollout has gone from purely voluntary to partly compulsory because the Delta variant is raging among the unvaccinated and causing a raft of economic problems, including spending cutbacks, reluctance to work and ongoing uncertainty about schooling. Workplaces have been a natural battleground for more aggressive mandates since the FDA fully approved the Pfizer-BioNTech (PFE) vaccine on Aug. 23. Businesses have much to lose if COVID disrupts operations, and they’re vulnerable to lawsuits if workers or customers get sick amid weak precautions. Courts have upheld businesses’ right to require employees to get vaccinated, as they can mandate other types of behavior essential to the safe operation of the business.

Will any of this make a difference? How about a hesitant yes. The vaccine campaign is about two things: First, making it easy for everybody to get access to vaccines. And second, normalizing the vaccine, to soften opposition among resistors. Paid vaccine leave will remove one last excuse among some holdouts. And it will eventually become dogma that if you want a formal job, you need to get vaccinated. In most places, nobody smokes in the office any more, and that campaign took years. Getting a couple of shots shouldn't be as difficult as that was. 

Rick Newman is the author of four books, including "Rebounders: How Winners Pivot from Setback to Success.” Follow him on Twitter: @rickjnewman. You can also send confidential tips, and click here to get Rick’s stories by email.

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