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Confronting ‘Nitty-Gritty’ of Mandates (Lance Turner Editor’s Note)

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Making the transition from online editor to editor of the Arkansas Business print edition has my head spinning. I’m concentrating more on weekly print demands than constant digital deadlines, which means I’m paying a little less attention to the minute-by-minute news cycle.

So I was caught flat-footed 11 days ago when President Joe Biden announced that his administration would require private companies with more than 100 employees to have all their workers get the COVID-19 vaccine or undergo weekly COVID testing.

I suspect some employers were surprised too. As I wrote on Aug. 9 (“Shots in the Dark”), when it comes to COVID vaccinations, most employers found the carrot preferable to the stick, with the most prominent exceptions in places you’d expect: Hospitals imposed mandates to keep employees healthy so they can provide badly needed care, and big employers like Tyson Foods Inc. of Springdale, with many of its 24,000 Arkansas workers standing shoulder to shoulder on food processing lines, aimed to retain workers and keep the food supply chain from “breaking,” as Chairman John Tyson memorably put it last spring.

But the thought that the federal government is reaching down, via the Occupational Safety & Health Administration and other mechanisms, to put this amount of pressure on employers is remarkable. (Weren’t we just complaining, in an Aug. 16 editorial, about state legislators targeting employers with laws that constrain how they run their businesses?)

I had lunch last week with a pro-vaccine Little Rock business owner (whose company would not be affected by the Biden rule) amazed that the federal government had issued such a sweeping requirement.

“Is this still America?” she asked, only half joking.

That’s a big question I won’t attempt to unpack; there are plenty of others arguably more pressing. Randy Zook, CEO of the Arkansas State Chamber of Commerce, has three pages of them.

Zook returned to Little Rock from Washington, D.C., early last week having met with chamber leaders from across the country. Biden’s vaccination plan was “topic No. 1,” he said, and pretty much all his chamber members have wanted to talk about.

Since Biden announced the plan on Sept. 9, pundits have argued whether the federal government, through OSHA, can implement such a rule. Zook thinks the basis of the inevitable legal challenge will be that the plan expands OSHA’s authority beyond physical workplace safety concerns to include infectious disease, something he said was not contemplated in the original OSHA legislation.

In the interim, businesses are grappling with the implications of the plan — what Zook calls “the nitty-gritty stuff” that arises when a regulation aims to cover a major swath of the U.S. workplace.

“I mean, start out with, how will the 100 employees be counted?” he asked. “You’ve got 100 employees for the entire business or 100 employees per location? What about part-time employees? Are they in the 100-employee threshold? And what about people working from home? Do they count in the threshold? What about temporary and seasonal workers?”

The list goes on. Who covers the cost of weekly tests for employees who refuse the vaccine? Could an employer require the employee to pay the cost? How exactly do you test workers? Can you do it in the workplace? Will any over-the-counter test do, or must it be handled by a professional? Who pays for that?

“I mean, it’s unprecedented in the scope of the activity that would be required to administer it and make it even have any kind of effectiveness,” Zook said.

Even as COVID-19 continues to spread, Zook thinks the better strategy would have been to allow more time for private business decisions to play out. He cited Delta Air Lines, which announced last week that 4,000 workers got the shot after it said it would raise insurance premiums on unvaccinated employees.

Businesses — and employment law attorneys — are now awaiting from the U.S. Department of Labor a final rule spelling out the plan’s particulars. In the meantime, Zook recommends businesses be patient and start planning for the rule in case it survives legal challenge. He expects it to go to the U.S. Supreme Court, a “several month” process that won’t be quickly resolved.

“In the meantime, continue to encourage and incentivize your employees,” he said. “Because the more that get vaccinated sooner, the better off we all are.”

Lance Turner is the editor of Arkansas Business.
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