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September 13, 2021

Biden Orders COVID Vaccine Mandates for Larger Employers

Employers with more than 100 workers must require vaccination among employees and implement weekly testing of the unvaccinated – or face a $14,000 fine per violation.

By  Christopher Ruvo

Private and public U.S. companies with more than 100 employees are being mandated by federal order to require that all their workers are vaccinated against COVID-19, or to test each unvaccinated employee weekly.

The mandate, issued by President Joe Biden on Sept. 9, is set to affect larger firms in the promotional products industry, including Top 40 distributors and suppliers. Employers in promo and all industries will face fines of $14,000 per violation for failing to comply with the order.  

Covid vaccine

“While we applaud the administration for taking the ongoing COVID threat seriously, at this point this latest regulation is accompanied by more questions than answers, in terms of legalities and proper administration,” a leading executive at a Top 40 promo firm told ASI Media. “We, initially, are taking a wait-and-see approach for our implementation until more practical guidance is available.”

Other promo executives strongly favor the Biden administration’s mandate.

“I see this as a much-needed step in the fight against COVID and as critical to the recovery of the U.S. economy,” a C-Suite leader at another Top 40 promo company told ASI Media. “While this is understandably a hot-button issue and federal requirements should be a last resort solution, we are unfortunately left with few alternatives.”

The executive continued: “The large number of unvaccinated workers, along with the rise of the delta variant, has put us back to where we were last year – with serious health and economic consequences. Without this requirement, the ability for companies to return to the office and to normal operations will be curtailed – and with particular importance for our industry, travel and in-person events will continue to be limited.”

Another Top 40 executive saw both pros and cons to the mandate.

“On the plus side, this will increase vaccination rates and reduce absenteeism that businesses have to deal with,” this executive opined. “The downside, and this is not an insignificant one, is that trust in our institutions, which is already badly degraded, will further erode as a result of the compulsory nature of this measure. That’s an issue, because worldwide there is a strong correlation between lack of trust in government and vaccine hesitancy. While I think the benefits to both individuals and businesses from this vaccine mandate are apparent, I harbor concerns about the broader ramifications that a coercive measure such as this is likely to result in.”

The White House has said formal guidelines and timelines for implementing the requirement will be issued “in the coming weeks.” The mandate is set to affect approximately 100 million workers in the United States. That number includes roughly 17 million workers at healthcare facilities that receive Medicare or Medicaid, and employees of the executive branch and contractors who do business with the federal government. Some promo companies are federal contractors.

In issuing the order, Biden criticized eligible Americans who have not yet been vaccinated, saying that patience with the unvaccinated is “wearing thin, and your refusal has cost all of us.” Unvaccinated people “can cause a lot of damage, and they are,” the president added.

Certain Republican politicians have spoken out vehemently against the mandate.

“President Biden’s vaccination mandate is unlawful and un-American,” said Montana Gov. Greg Gianforte. “We are committed to protecting Montanans’ freedoms and liberties against this gross federal overreach.”

Arkansas Gov. Asa Hutchinson said: “I fully support continued efforts to increase vaccination rates across our nation, but the federal mandates on private businesses are not the right answer. I have been consistent in the freedom of businesses to require their employees to be vaccinated, and I have opposed the government from saying businesses cannot exercise that freedom. The same principle should protect the private sector from government overreach that requires them to vaccinate all employees.”

Experts on employment law have weighed in to say that vaccination mandates are legal, provided that employees can apply for – and receive – accommodations based on legitimate medical or religious reasons.

“Legitimate” reasons can constitute things like allergies or other health conditions that would predispose an individual to severe reaction to a vaccination, or demonstrating that one adheres to a deep religious conviction that vaccination is wrong.  

Even so, the law doesn’t necessarily protect an unvaccinated/accommodated employee from being let go. It requires the employer to make reasonable accommodations for the employee. However, “if such an accommodation can’t be made, because for instance the employee needs to be onsite, or there isn’t a way to isolate them in the office, the business may decide the employee can’t continue to work for them,” USA Today reported.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSAH) is expected to lay out the rules for Biden’s vaccination requirement for 100-employee employers. Those rules are likely to include provisions that say employers must provide paid time off to workers to enable them to receive the shot and to recover if they suffer from side effects. Flu-like symptoms, pain at the injection site and fatigue are not uncommon.

Employees who refuse vaccination will have to undergo weekly tests, according to Biden’s mandate. It’s possible that employers could make workers pay for those tests. Colleges are already charging unvaccinated students for testing.

Employers could also require unvaccinated employees to pay higher health-insurance premiums. Some already have. Delta Air Lines is requiring unvaccinated employees who receive health insurance from the company to pay $200 more per month in premiums, beginning Nov. 1. Starting this week, unvaccinated Delta Air Lines employees must get tested weekly.

“The average hospital stay for COVID-19 has cost Delta $50,000 per person,” said Delta CEO Ed Bastian in an employee memo. “This surcharge will be necessary to address the financial risk the decision to not vaccinate is creating for our company.”

Analysts say the higher premiums and charging workers for testing could compel more people to get vaccinated.

“If they require employees to bear that cost,” Laura Boudreau, a professor of economics at Columbia Business School who focuses on occupational health and safety, told USA Today, “that’s yet another nudge for those employees to get vaccinated.”

Qualtrics, a business management platform, released the results of a survey in August that showed nearly a quarter of workers (23%) would strongly consider leaving their job if their employer instituted a vaccination requirement. The same survey, however, found that about six in 10 employees favor vaccine requirements.

An August poll from the Associated Press found that 55% of Americans are in favor of requiring government workers to be fully vaccinated; 21% are opposed. Similar majorities backed vaccine mandates for healthcare workers, K-12 teachers, and workers who interact with the public.

About 179 million Americans, or just under 54% of the population, is fully vaccinated.

Nonetheless, due to the more contagious delta variant, COVID case counts have been surging in recent weeks, rising to an average of 140,000 per day, with about 1,000 deaths, according to data from the Centers for the Disease Control and Prevention. The majority of the cases and deaths are happening among people who are not fully vaccinated. Vaccinated people can still get and transmit the virus, but their cases tend to be much less severe.

In related news, the Biden administration is doubling federal fines for airline passengers who refuse to wear masks on flights.