Biden vaccine order provides ‘cover’ for South Florida employers

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After months of encouraging employees to get vaccinated against COVID-19, large businesses in South Florida now have the excuse they need to insist on it.

President Biden directed Thursday that employers with more than 100 workers must mandate COVID-19 vaccines or test employees every week. He also expanded a recently imposed vaccine requirement for nursing-home workers to include hospitals and other health-care facilities.

The order will put an end to months of companies relying on persuasion and economic incentives to get their employees vaccinated. But it also could spark challenges from labor unions, and specific guidelines from the federal government could be weeks away, delaying the benefits for the economy and public health.

Although the delicate task of steering a middle course may soon be lifted, businesses will still have to ensure that workers get vaccinated while keeping track of testing results for those who don’t, labor and employment experts said Friday.

“A lot of industries will be supportive of this because they wanted to do this anyway, and it gives legal cover,” said Mark Neuberger, a labor and employment lawyer at Foley & Lardner.

Neuberger said he wouldn’t be surprised if employers proceed with vaccine mandates before the federal government issues its official guidance.

He didn’t doubt that there would be opposition from anti-vaccine groups who might challenge the mandate in court.

Angela B. Cornell, a clinical professor at Cornell Law School who focuses on labor law, said the mandates are a positive step for businesses.

“This shift will make it a lot easier for employers to push those individuals who have been on the fence or who have been opposed,” she said.

Companies won’t have to worry about being sued, since it’s a government mandate and not one from the employer, she said.

Wayne Brackin, president and CEO of Kidz Medical Services of Plantation, said his company had already required staffers to get vaccinated and reached close to 98% compliance with the policy. About 75% of the staff had already gotten vaccinated before management required it, he said.

“It became apparent along the way it was going to be difficult on a purely volunteer basis to pick up the remaining people who were reluctant or fearful, or unfortunately incredibly misinformed about the facts of the circumstance,” he said.

Dr. Harry K. Moon, executive vice president and chief operating officer of Nova Southeastern University, discussed his institution's intention earlier this year to mandate COVID-19 vaccines for all students and employees.

Dr. Harry K. Moon, executive vice president and chief operating officer of Nova Southeastern University, discussed his institution’s intention earlier this year to mandate COVID-19 vaccines for all students and employees. (Mike Stocker / South Florida Sun Sentinel)

Once the company made it mandatory — with medical and religious exemptions — more and more staffers got their shots. “We’ve had a few requests for medical exemptions, no requests for religious exemptions at this point.”

The NFL’s Miami Dolphins has been requiring full-time stadium office workers and staff assistants to be fully vaccinated for several weeks, Jason Jenkins, senior vice president, said in a statement.

Jenkins said the team acted when the Food and Drug Administration approved the Pfizer vaccine. The requirement was instituted for people “absent a qualifying disability or sincerely held religious belief.”

“We feel that operating within a fully vaccinated environment will offer a safer experience for our employees in alignment with NFL protocols, ” he said.

The statement made no mention of the team’s players, who work under the terms of a collective bargaining agreement between the league and the NFL Players Association.

Companies are now waiting for the details of proposed rules from the U.S. Department of Labor and its Occupational Safety and Health Administration, which will require workers to be vaccinated or face weekly testing, Businesses must also offer employees paid time off to get vaccinated.

It will be the employers’ responsibility to not only ensure their workers are vaccinated but to keep records of any testing results, said Allison Oasis Kahn of Carlton Fields.

“It’s likely employers will have to start collecting the vaccination records,” she said. “They will have to keep that information confidential pursuant to medical records laws.”

Roger Feicht, a shareholder at the Gunster law firm in West Palm Beach, said, “It’s wise to start preparing a plan to deal with checking vaccine proofs and confidentially storing test results,”

“There will be presumably time for businesses with 100 or more employees to start doing this,” he said. “Most businesses are taking action behind the scenes waiting to implement the rule.”

Feicht said he anticipates “it will be a matter of days or weeks” before the OSHA releases the rules.

Previously, legal experts have widely acknowledged that federal law generally allows companies to require workers to get vaccinated. But as the vaccines became available, employers elected to take an easier route, often using financial incentives.

Unions are approaching the topic cautiously.

“Up until the federal mandate, state and local FOP lodges have been dealing with vaccine mandates because each case is different due to their locality,” said spokeswoman Jessica Cahill.

The group had been advising members to consult with their primary doctors and “seriously consider receiving the vaccine to protect themselves and others from becoming seriously ill.”

Public employee unions in Florida had urged their local members to bargain with employers over the terms and conditions of administering COVID protections.

On its website, the Florida arm of the American Federation of State County and Municipal Employees urged members under contract “to demand bargaining to ensure they are treated fairly.”

But in the wake of the president’s order, it was not immediately clear what kind of leverage the unions have to negotiate terms.

“Employees working under union contracts can bargain over impacts of a mandate, and AFSCME encourages union members to demand bargaining to ensure they are treated fairly,” the union says on its site.

South Florida employers such as Ryder System, the Miami-based transportation services company, had been offering an estimated 40,000 employees up to six hours of paid time off to get their shots. The program also included three hours for the first vaccine and an additional three hours for treatments that require second doses.

A company spokesman declined comment Friday about Biden’s action.

Carnival Corp., the Doral-based operator of nine cruise lines, had not been mandating shots. But a source familiar with the matter said Friday that the company’s crew members are being vaccinated and that many members of the shore-side workforce in the U.S. have been vaccinated.

At the Seminole Hard Rock Cafe and Casino in Hollywood, vaccines hadn’t been mandatory, either. But some 21,000 employees worldwide who work for Hard Rock International and Seminole Gaming were offered plenty of financial incentives to get them.

In June, the Hollywood-based companies started a “Rock Your Shot” campaign that offered cash prizes ranging into the tens of thousands of dollars.

A spokesman did not respond to a request for comment.

Kidz Medical Services did not offer financial incentives. It did offer four infectious disease specialists to any employee who had questions or felt hesitant about the vaccines.

“I think that was an enormous help in getting people to be willing to comply and get the vaccine,” Brackin, the CEO, said. “Beyond that, we are an organization that specializes in pediatric specialty care, so we feel an extra obligation to make sure that we have patients coming into the safest environment they possibly could.”

United Airlines announced last month that it would require employees to be vaccinated, saying that workers who failed to do so would be placed on leave Oct. 2 and terminated unless they can show a medical or religious reason for bypassing the shots

Management said more than half its workers who weren’t vaccinated have obtained the shots since the company announcement, according to The Associated Press.

Other airlines have encouraged workers to get the shots but haven’t required it, although Delta Air Lines plans to hit unvaccinated workers on its health plan with a $200 monthly surcharge starting in November.

The fee led to about 20% of the company’s unvaccinated workers to get shots.

Healthcare facilities affected

In health care, the federal Centers for Medicare & Medicaid Services said hospitals, dialysis facilities, ambulatory surgical centers and home health agencies will have to meet staff vaccination requirements as a condition for participating in the Medicare and Medicaid programs, the News Service of Florida reported.

But the Florida Health Care Association, the state’s largest nursing-home group, quickly raised concerns that Biden’s vaccination requirement will worsen staffing shortages and apply only to nursing homes.

Management in other industries have similar fears that vaccination-averse workers will quit, or job seekers won’t apply for their openings. Some workers also may switch to smaller companies where shots in the arm aren’t required.

“In a tight marketplace, it’s very difficult to find employees, much less to keep our current employees,” said Jonathan Chariff, CEO of South Motors, a group of 12 auto dealerships in South Florida with more than 1,100 workers. “It’s easy for them to go and find another job elsewhere.”

Lakeland-based Publix is seeking further guidance from Washington, said spokeswoman Maria Brous.

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“We will communicate additional information to our associates once further information is available and we have had an opportunity to review the standard,” Brous said.

Publix has more than 225,000 employees and 1,280 stores in Florida, Georgia, Alabama, Tennessee, South Carolina, North Carolina and Virginia. The giant grocery chain is offering a $125 gift card to employees who get fully vaccinated.

The Orlando-based owner of Olive Garden, Darden Restaurants, is awaiting the full details and did not have information to share Friday, said spokesman Rich Jeffers. Darden has 160,000 employees and more than 1,830 restaurants including Olive Garden, LongHorn Steakhouse, The Capital Grille, Seasons 52, and others.

Feicht, at the Gunster law firm, indicated that rules to be released by OSHA will still allow exceptions for employees with disabilities or health conditions, allowing them to continue to request exemptions under the Americans with Disabilities Act.

Employees with religious objections have the right to refuse vaccines and are protected by the EEOC. Those rights are limited, however, if an employer can show that a refusal to be vaccinated would create an undue burden on the company or pose a direct threat to the workplace.

The Associated Press, the Orlando Sentinel and Sun Sentinel columnist Dave Hyde contributed to this report.

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