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Companies See ‘Manna From Heaven’ With Biden Vaccine Mandate

Sept. 23, 2021, 3:48 PM

Big companies worried about angering workers with a vaccine mandate are getting a gift with President Joe Biden’s plan to require the shots.

“Everybody loves this cover,” said Kate Bischoff, a Minneapolis employment lawyer. “Many were already looking down the road at doing this, but the fact that they get to blame Biden is like manna from heaven.”

Biden this month told the Occupational Safety and Health Administration to write a rule requiring that companies get workers vaccinated or show that the employees test negative for Covid-19 each week. The mandate will cover about 80 million workers.

“It’s a lot easier for us to say that OSHA spells it out this way and we have to comply,” said Sonia Zeledón, Hershey Co.’s associate general counsel and head of ethics, compliance, and data privacy. “All the companies are looking forward to see how OSHA defines the mandate for us to then follow.”

Top lawyers at companies spanning the financial services, technology, and consumer goods industries spoke with Bloomberg Law about the Biden mandate that affects employers with more than 100 workers. Most embrace the mandate though worry about logistical headaches when they implement it.

Legal chiefs question how they will verify worker vaccinations and whether they have the right policies in place. They wonder how they will ensure employees get weekly tests and who will pay for them.

“We’re actively monitoring the specifics around the recent announcement,” Clorox Co.’s chief legal officer, Angela Hilt, said in an email.

‘Nightmare’ Tests

Many companies are likely to opt to give workers only the option of vaccinations to avoid the “nightmare” of tracking test results, Bischoff said. Federal contractors are forced to take that approach: They are governed by a separate rule requiring vaccinations without a test alternative.

Hershey requires its corporate employees to be vaccinated against Covid-19 by Oct. 4. It hasn’t yet taken that step in factories because of logistical challenges, though Biden’s mandate could speed up the process and the factories have other safety protocols in place, Zeledón said.

Biden administration officials have said the rule could be out in a matter of weeks, but corporate attorneys told Bloomberg Law it may be more like months before companies know the details of mandate. The agency spent nearly five months developing the pandemic’s first emergency temporary standard, which mandated Covid protections for healthcare employees.

An OSHA spokeswoman did not immediately respond to requests for comment. The agency is expected to issued guidance—including answers to frequently asked questions—along with the rule.

It is unclear whether OSHA will provide specific requirements for handling workers who refuse to be vaccinated or tested. The agency will have the power to fine companies up to $14,000 per violation of its vaccine regulation.

Also unclear is how the regulation will treat companies or workers that try to game the system. Zeledón said Hershey would treat any violation of the OSHA mandate, such as a forged vaccine card, as a breach of the company’s code of conduct.

Catching Up

Many companies already implemented vaccine and testing requirements before the rule was announced. Biden recently met with the leaders of some of those businesses, including Microsoft Corp., The Walt Disney Company, Walgreens Boots Alliance Inc., and Kaiser Permanente.

Tyson Foods Inc. experienced significant Covid outbreaks in its meatpacking plants last year along with some similar companies, and is facing wrongful death claims from the families of workers who died from the virus. Last month, the company issued a vaccine requirement for all 120,000 employees by Nov. 1.

“With the recent announcement from the President, we hope that other companies will follow our lead to protect workers, families and communities,” Tyson Foods general counsel Amy Tu said in an email.

Major companies like Delta Air Lines, Inc., Facebook Inc., and Alphabet Inc.'s Google have also issued vaccination requirements for employees that want to work in-person. Walmart Inc. and Walgreens have issued similar mandates for at least some workers.

Not all businesses are eager for a mandate. Jonathan Segal, an employment lawyer for Duane Morris in Philadelphia, said the rule is getting a “mixed reaction” from companies.

“Clients that don’t favor it think it’s impracticable or don’t like it because of the cost,” he said.

Uncertainty

Even when OSHA does release the vaccine mandate, it may lack the specificity that legal chiefs want, leaving companies on their own to develop best practices.

“OSHA regulations are clear as mud,” Zeledón said. “They have been around for a lot of years, and we figure it out. It’s what we’ve been doing the last 18 months.”

Biden said the mandate will require employers to give employees paid time off to get vaccinated and recover from its side effects. But it’s unclear whether employers would also have to give unvaccinated employees paid time off to get tested, or if they’d have to pay those workers for testing time.

VIDEO: We answer the question on the minds of CEOs, in-house lawyers, and rank and file employees - can employers make their employees take the vaccine?

There are also questions around privacy and data, said a general counsel of a tech startup with around 500 employees. He spoke on condition of anonymity because of the sensitive nature of internal corporate discussions about vaccination polices.

The general counsel of a financial services startup, who also requested anonymity, said there’s concern that employees who staunchly oppose getting the vaccine will look to cheat the requirements, such as fabricating a fake vaccine card or even pushing a questionable religious exemption.

Some workers could challenge the OSHA rule in the courts. United Airlines Inc. was hit with a federal lawsuit over its vaccine mandate, with some workers alleging it violates religious and disability job accommodation laws.

The rule is already expected to be challenged by attorneys general from states dominated by Republican lawmakers and advocacy groups. Corporate groups like the Chamber of Commerce and the National Retail Federation, which often challenge new employer mandates from the White House, appear to be focusing on helping members comply rather than blocking the rule in court.

—With assistance from Ben Penn and Robert Iafolla

To contact the reporter on this story: Ruiqi Chen in Washington, D.C. at rchen@bloombergindustry.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com;
John Hughes in Washington at jhughes@bloombergindustry.com

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