Business owners finally have some answers on the federal vaccine mandate, and they’re not thrilled with them.
Two months after President Joe Biden announced private sector employers with 100 or more employees would be subjected to a vaccine mandate, the Occupational Safety and Health Administration on Nov. 4 detailed how and to whom the new rules apply.
The confusion for many Michigan business owners started with whether or not they would fall into that category.
The 100-employee threshold is based on the overall company total, not individual locations, the federal government clarified last week. That means if there’s a kiosk with one employee, but the total number of company employees is 100 or more, the kiosk worker would indeed be subject to the mandate.
Related: The federal vaccine mandate will affect 2 million Michigan workers. Here’s what we know.
This was not the news Jeff Lobdell, President of Restaurant Partners Management, was hoping for. His company operates 18 locations between Grand Rapids and Traverse City such as the Beltline Bar and Sundance Grill.
While not one location has 100 employees, the entire company has 670 employees and therefore must comply with the new mandate.
Lobdell has been encouraging employees to get vaccinated ahead of the mandate and estimates his staff is about 65% there. Still, he worries that employees will see this requirement as coming directly from the company, rather than the government.
“I don’t think us as employers need to be policing this, as well and putting a wedge between us and our employees,” he said. “We want to continue that great relationship we have and we don’t want any hard feelings toward us as an employer for having to comply with and follow federal mandates.”
The mandate gives employers a choice of issuing their own, more stringent vaccine policy, or requiring employees to either get vaccinated or undergo weekly testing.
Ahead of the OSHA announcement, employers feared they would be required to foot the bill for weekly testing. The mandate leaves that open-ended, but notes that paid testing could be part of collective bargaining.
If an employee decides to get vaccinated during company time, the employer is required to offer at least four hours of paid time off.
For businesses that are still trying to get back on their feet, like many in the food and hospitality industry, any additional expense of time or money could be a tipping point, Lobdell said.
The mandate also states employees who refuse to get vaccinated or tested are no longer covered by OSHA’s anti-retaliation or discrimination protections, meaning they could be fired for noncompliance.
At this point, all 18 restaurants under Restaurant Partners Management are open every day, but if even 10% of employees walked away, it would hurt business, Lobdell said. The pressure of the labor shortage and supply chain disruption is still weighing heavy on the restaurant industry.
“It’ll further hamper our ability to serve the community,” he said. “The workforce availability has been a stretch for everybody.”
When asked on a White House press call if the holiday season was factored into the Jan. 4 decision, senior administration officials said pushing the deadline until the new year was intended to make it easier for businesses to comply.
William J. Hallan, CEO of the Michigan Retailers Association, disagrees. In a statement responding to the mandate, he said the timing puts a further crunch on the fourth quarter, when retailers are the busiest.
“Retailers are already facing devastating supply chain and shipping challenges combined with workforce shortages this holiday season and now they have this added logistical nightmare,” Hallan said. “This couldn’t have come at a worse time and is unnecessary since retailers have largely stepped up to keep their employees safe without government intervention.”
U.S. Rep. John Moolenaar, R-Midland, introduced legislation last week seeking to cut off funding for the Department of Labor to enforce the mandate, though the bill is unlikely to advance in a Democratic-led House.
Nineteen states have announced plans to sue the Biden administration over the vaccine mandate. Michigan is not among them, but some business owners think this leaves the door open for the mandate to be tweaked or pushed back.
Detroit labor and employment lawyer Deborah Brouwer said she wouldn’t play those odds. She advises business owners to get their plans in place now so they’re not caught getting penalized after the Jan. 4 deadline.
OSHA may fine a company $136,532 for willful or repeated violations, or about $14,000 for a single violation, and an employer may receive multiple fines.
“It would be wise to begin planning and putting together a policy,” she said. “I think we’re a little past wait and see.”
Eight of Michigan’s largest health systems already have vaccine mandates in place, while four others do not. Similarly, Ford will require nearly 32,000 salaried employees to get the vaccine or face possible unpaid leave.
In September, the Society for Human Resource Management surveyed almost 3,000 HR professionals and American workers about the vaccine mandate. Survey results showed 90% believed it will be somewhat or very challenging to implement a vaccine mandate or weekly testing.
Of the organizations that met the 100 or more employee threshold, 80% said they are concerned about the amount of time they will have to spend enforcing or tracking employees’ vaccination status or test status.
The mandate does not require employers to set up onsite vaccination or testing, but it does require printed or digital copies of vaccination records, a roster of every employee’s vaccination status and a record of every test result from every employee.
In Michigan, 22 business associations and chambers of commerce came together to form the Listen to MI Business Coalition. Before the mandate was released, Rich Studley, CEO of the Michigan Chamber, urged policymakers to get input from business leaders.
While he agrees that boosting vaccination rates is a sensible goal, he called a top-down mandate a “serious mistake” and criticized the administration for not including stakeholders in the discussion.
“Now, after a process shrouded in secrecy, job providers already in a labor shortage entering the busy holiday season are left to wade through hundreds of pages of regulations and figure out how they will comply under the threat of steep financial penalties,” Studley said.
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