Uncertainty over Biden’s vaccine mandate has companies in ‘wait-and-see mode’

President Joe Biden’s declaration that companies with more than 100 employees must ensure their workers are vaccinated against, or test negative for, COVID-19 could relieve employers of the burden of deciding whether to impose that mandate themselves. 

But uncertainty about how the mandate will be implemented and whether it will survive the inevitable court challenges is keeping some companies in what Erin Kilgore, a labor and employment attorney with Kean Miller, calls a “wait-and-see mode.”

“Employers have a lot of questions about what will be required of them,” she says. “We’re advising our clients to stay tuned, monitor these developments closely, and start thinking about some of the practical realities that will come into play as we learn more.” 

For example, the White House says the mandate will allow for exceptions for workers seeking religious or medical exemptions from vaccination. Kilgore says it might make sense for business leaders to start thinking about how they would handle exemption requests, but it’s probably premature to craft a formal policy “until we get the rule.”

Murphy Foster III, an attorney with Breazeale, Sachse and Wilson whose practice includes employment and labor law, says his firm is working through how it will advise its clients to react. He says he does not believe OSHA has the constitutional authority to enforce the mandate, as Biden’s order purports, even though courts have upheld various governments’ ability to restrict and even temporarily shut down businesses to control the spread of COVID-19. 

“The Constitution permits the government to regulate ongoing interstate commerce, not to coerce people into engaging in said commerce,” he says. 

Foster represents many builders and contractors, many of whom already are struggling to hire enough workers. He says a recent survey indicates a vaccine mandate would cause contractors to lose more of their workforce. 

Capital Region employers generally have encouraged their employees to get vaccinated but have not required it, with the notable exception of the major health care providers. Half of American workers support vaccine requirements at their workplaces, according to a poll from The Associated Press-NORC Center for Public Affairs Research, the AP reports. 

Connie Fabré, president and CEO of the Greater Baton Rouge Industry Alliance, says she isn’t sure how the industry will respond to Biden’s declaration, though some GBRIA members previously have discussed imposing their own mandates. 

“I think these mandates have been in the air,” she says. “It’s not totally unexpected that this is coming down.”