On September 9, President Biden announced mandatory vaccinations for most federal contractors and subcontractors. This mandate also includes private sector workplaces, but only if they have over 100 employees. Since that announcement, our office has received many questions across the board about vaccine mandates.

What You Need to Know

Employees of federal contractors and subcontractors have until December 8, 2021, to get fully vaccinated.

As for private businesses that have under 100 employees, the President intends to enforce the mandate through the federal Occupational Safety and Health Administration (OSHA). The President is relying heavily on OSHA to develop an emergency regulation to implement the mandate.

According to CBS News, this is the second COVID-19 emergency rule to come from OSHA. The first took 5 months to write, missing the President’s deadline by a month. Not to mention, OSHA has lost 5 out of their last 6 lawsuits challenging the previous emergency regulations.

There are sure to be legal challenges to OSHA’s rule, whenever it does finally come out. If previous experience is any indicator, the outlook is not good for the mandate’s survival.

Tips for Business Owners

But what about businesses with under 100 employees? According to testimony from the National Federation of Independent Business (NFIB) given in early 2021 to the Michigan House Appropriations Committee, small businesses with less than 50 employees represent 93% of Michigan employers, an overwhelming majority. Other than the federal contractors and subcontractors in that group, the federal OSHA mandate won’t apply to most Michigan employers.

Michigan small businesses, their employers, and customers still have concerns surrounding the pandemic and creating safe, productive workspaces. Owners and executive leaders may be considering independently mandating or incentivizing COVID vaccinations for their workforce. Here are some things to consider:

Whether or not you have a unionized workforce, your workers may have rights under the National Labor Relations Act to express their concerns. Management should, therefore, tread carefully and seek professional advice before imposing any discipline or sanctions for employee speech or expression surrounding this issue.

Anti-discrimination laws also create legal risks for employers. For example, one or more employees may have disabilities or religious beliefs that restrict management’s ability to implement vaccine mandates. These are case-by-case issues, but they should be evaluated with management, human resources, and legal counsel.

Expert Business Risk Management

For many people, the COVID vaccine presents hope for a pandemic-free future. For many others, it’s another attempt for the government to restrict individual liberties and inject itself into personal healthcare decisions. To manage legal risk, employers should be sensitive to both viewpoints and understand your management rights and responsibilities in light of employee protection and anti-discrimination law.

If you want to make your workplace safe for employees, customers, and contractors, as well as control your legal risk, contact Brandon Grysko at Fausone & Grysko, PLC, your local HR and Business Attorney. (248) 380-0000