Private-sector employers with 100 or more workers are scrambling to get ready for a newly unveiled federal vaccine mandate.
And they only have a few weeks to prepare.
Starting Jan. 4, on-site employees of those businesses will be required to either be fully vaccinated or undergo weekly testing. Other elements of the mandate – including a masking requirement for unvaccinated workers – take effect even sooner, on Dec. 5.
"That is really quick," said Luke Wright, a labor and employment partner with Harter Secrest & Emery.
Businesses have known since September that President Biden planned to introduce such a mandate. But until Thursday, they didn't know when it was coming or other specifics of how it would work.
Many private-sector employers have been reluctant to impose vaccine mandates, at a time when they are worried about keeping employees on board.
But the federal government's decision marks further expansion of vaccine mandates into the nation's labor force, and will cover about 84 million workers. The new mandate is expected to trigger legal challenges.
Under the Occupational Safety and Health Administration's rules, employees of companies covered by the mandate who work on-site for their jobs won't have to be vaccinated as a condition of their jobs.
But starting Dec. 5, those unvaccinated workers will need to wear a face covering at the workplace.
And as of Jan. 4, workers who are not fully vaccinated will have to undergo testing once a week, plus wear face coverings at the workplace.
OSHA says companies won't be required to provide or pay for the testing, although a labor contract or other regulation may require them to do so. Workers can also apply for medical or religious exemptions from the mandate.
Remote-only workers count toward the size of a company's workforce, but OSHA rules indicate they won't be subject to the vaccinated-or-test requirement.
Starting Dec. 5, companies covered by the mandate will need to provide paid time off for employees to get vaccines and sick leave to recover from side effects that prevent them from working.
Buffalo-area employers were digesting the terms of OSHA's new released rules – all 490 pages of them.
Both KeyBank and M&T Bank – two employers with a large number of office workers – said they were reviewing what is expected of them. Both banks have previously outlined plans to start bringing nonbranch workers back to their offices in January, with hybrid work schedules.
National Fuel was also taking stock of the contents, said Karen Merkel, a spokeswoman.
"Like other companies and large employers, we anticipated the federal requirement and have taken preliminary steps toward compliance," she said.
Rich Products says 70% of its 7,600 U.S. workers are fully vaccinated. "We’re making great progress, but still have a ways to go," said Dwight Gram, a company spokesman.
As the company finalizes its plans to comply with the new mandate, Rich Products is urging more employees to get vaccinated, he said.
Vaccine mandates have proven controversial. Proponents contend mandates will bolster the vaccination rate to combat the spread of Covid-19. Critics call the mandates governmental overreach. But in some employment sectors, vaccine mandates are already a fact of life, or soon will be.
Health care workers in New York State are already required to get vaccinated. Federal workers are facing a Nov. 22 deadline to get inoculated. And employers with federal contracts will also be subject to a vaccine mandate starting Jan. 4 – a deadline that was pushed back from Dec. 8. Nineteen states have filed lawsuits challenging the mandate related to contractors.
Once New York state's vaccination mandate for health care workers went into effect Sept. 27, some hospitals in Western New York put unvaccinated workers – who didn’t have an exemption – on an unpaid 30-day leave, giving them one final chance to get a shot.
In Western New York, state data shows the percentage of fully vaccinated hospital workers went from 88% on Oct. 12 to 92% on Tuesday. When including those partially vaccinated, that percentage rises to 96%.
With those 30-day leave periods now over, the region’s hospitals reported terminating only a slim percentage of its workforce, less than 1% in most instances. But more terminations are possible, especially if those health systems begin cutting unvaccinated employees with religious exemptions, something that is the subject of court cases all over the country.
The federal vaccine mandate for private employers with 100 or more workers arrives at a busy time of year. It's the enrollment period for health care benefits, and the end of the year is looming – which can mean a seasonal shutdown at some businesses, and a surge of activity at retailers, fueled by holiday shopping.
"Unfortunately for employers, this will be a pretty rushed process, and this is not the best timing," Wright said.
The new rules also create ongoing obligations for the covered employers. They will need to verify unvaccinated workers who work on-site are getting tested weekly, and maintain records of employees' vaccination status.
The new mandate kicks in at a time when many employers are worried about their ability to recruit or retain workers. Could the new requirement prompt some of those employees to walk out the door?
Wright noted vaccine mandates are touching an increasingly larger percentage of workers – from health care, to federal contractors, to private employers with 100 or more workers. It may be difficult for workers unhappy with the new mandate to find another job that isn't covered by such requirements, he said.
And why did OSHA choose to set the mandate at the 100-or-more employee level?
The agency said it was "confident" employers of that size "have the administrative capacity to implement the standard’s requirements promptly, but is less confident that smaller employers can do so without undue disruption."
Bob Confer, president of Confer Plastics in North Tonawanda, tweeted: "Nothing in the OSHA mandate should be earth shattering to any business that has been actively engaged in Covid mitigation and tracking. It's another reminder, though, why any organization of any size should have a full-time Covid administrator."
News business reporter Jon Harris and wire services contributed to this report.