Ask the Labor Lawyer #9 - Business Owners and Vaccine Mandates

10/20/2021 by Laura

Question:  I am a business owner with over 100 employees.  I support the freedom to choose whether to take the COVID vaccine.  At the same time, I don’t think it helps my community or my employees if we are shut down for violating Biden’s vaccine mandate.  What can I do? 

Response:  Federal vaccine mandates are putting freedom-loving business owners in a tough spot.  At RedBalloon, we support employers who are loud and proud, ready to openly defy tyranny.  But there are also more subtle ways that you can promote vaccine freedom while staying within the letter of the law.

  1. Wait for the regulations.  Many people do not realize that President Biden’s so-called vaccine mandate is just a press release.  At this time, there is no actual executive order or published regulation regarding employers with over 100 employees.  The Occupational Safety and Health Administration (OSHA), part of the Department of Labor, submitted draft regulations to the Biden administration on October 12.  However, these regulations have not been finalized, approved, or published.  There is no reason to jump the gun and impose a vaccine mandate now.

  2. Be lenient with exemptions.  Current federal law requires reasonable accommodation for employees with medical and religious objections to vaccines.  Even if you decide to comply with the vaccine mandate, you can still be generous in granting religious and medical waivers.  You can also point your employees to resources that will help them bolster their waiver applications.

  3. Offer alternatives to termination.  Let’s say an employee is unable or unwilling to provide a religious or medical reason for not wanting the vaccine.  They refuse for purely personal or political reasons.  In that case, you could still offer alternatives to termination.  As a business owner, you probably have an extensive network of contacts, including people who value your goodwill.  You could help place your employee with a vendor or other business partner that has fewer than 100 employees.  At a bare minimum, you should offer your employee a leave of absence to buy more time to consider options.

  4. Get creative.  We don’t yet know how the Biden administration will define “100 employees.”  Once the regulations come out, it may be possible to get your headcount below 100.  Perhaps you can sell a product line, or perhaps you have a natural division for splitting the company into independent affiliates.  Consider encouraging some of your employees to start their own business, providing you with consulting services rather than full-time employment. 

 

May you find the will and the way to uphold freedom, while staying in business,

Laura, The Labor Lawyer 

Please note that this post does not constitute legal advice on your specific situation, and you do not have an attorney-client relationship with Laura.  If you have questions for Laura, please send to [email protected]  Such questions may be used for general edification in this column.