Michelle De Oliveira was quoted in the Telegram & Gazette article below by Henry Schwan.
They say it’s bad for business. One legal expert says the mandates should hold up in court.
WORCESTER — Some of the largest companies in the city and Central Massachusetts aren’t happy about COVID-19 vaccination mandates spelled out by the White House last week.
A “recipe for disaster” is how Chris Crowley of Polar Beverages on Southbridge Street described an order that requires all private businesses with a minimum of 100 workers to get their staff vaccinated against COVID-19.
And it must be done by Jan. 4 — unless an emergency stay granted Saturday by a federal appeals court is extended.
And that’s unlikely, according to the U.S. Labor Department’s top legal adviser, Solicitor of Labor Seema Nanda, who said the department is “confident in its legal authority to issue the emergency temporary standard on vaccination and testing.”
Polar Beverages, where Crowley serves as executive vice president, would fall under the mandate from the federal Occupational Safety and Health Administration.
Crowley isn’t the only local businessman uncomfortable with the rule.
“It’s not going to help business,” said Bruce Platzman, chief executive officer at AIS Inc., an office furniture manufacturer in Leominster.
AIS employs 700 workers in the state and approximately 85% are vaccinated, Platzman said.
However, a few AIS senior-level executives refuse to get vaccinated. As Platzman tells it, some of those executives contracted COVID-19 and feel they’ve built up natural immunity.
Platzman worries they will quit rather than adhere to a government mandate.
“We’re evaluating things now,” Platzman said. “There’s no way to move forward by losing tons of employees and millions of dollars of business. It’s a tricky balancing act right now.”
Meanwhile, Polar employs roughly 700 workers in Worcester. Crowley estimated more than 80% are vaccinated. Those who aren’t are not necessarily against vaccination. They just don’t like being told what to do, Crowley said.
Besides, with the economy’s supply chain “such a disaster” due to the pandemic, Crowley said now is not the right time to make vaccine mandates.
“(The economy) is too fragile now to force this. It will make a giant negative difference in the economy,” Crowley said.
Details of OSHA’s mandate
It covers more than 80 million workers at private businesses. Those not vaccinated must submit a weekly negative COVID test and wear a face mask in the office.
Fines up to $14,000 per violation are possible — a prospect that “scares” Crowley.
“The only thing that scares us is overregulation. It can put you out of business,” Crowley said.
Saint-Gobain, with approximately 1,000 employees in Worcester, is reviewing the details of OSHA’s mandate.
“Saint-Gobain remains committed to protecting the health and safety of our employees and our communities,” a company statement reads, in part. “At this time, we are reviewing the details of yesterday’s announcement and planning a path forward that will ensure our company’s compliance with all guidelines and regulations.”
Officials at two of Worcester’s largest companies — Hanover Insurance Group and Fallon Health — said they will adhere to the mandate
Hanover has 4,300 employees, including 1,600 in Worcester. The company did not disclose the number that are vaccinated.
“The health and well-being of our employees is our first priority,” said Denise Lowsley, chief human resource officer at the Hanover Insurance Group, in an email to the Telegram & Gazette. “We currently adhere to CDC, OSHA and local safety protocols, including the Worcester mask mandate.
“As always, we intend to fully comply with any and all OSHA rules and regulations.”
At Fallon’s headquarters in Worcester, 83% of the 925 employees are fully vaccinated, according to company officials.
“Vaccines remain the best defense against COVID-19, including the delta variant,” said Richard Burke, Fallon Health president and chief executive officer, in a prepared statement. “Getting the vaccine also presents an opportunity for our workforce to serve as role models in and for the diverse communities we serve.”
Beyond the mandate for private businesses, 17 million health care workers at institutions participating in Medicaid and Medicare must get vaccinated, according to rules from the Centers for Medicare and Medicaid Services (CMS).
Those workers reportedly don’t have the option of taking a weekly COVID test instead of vaccination.
St. Vincent Hospital and UMass Memorial Health declined a Telegram & Gazette request for comment on the CMS rules.
Companies that have contracts with the federal government must also get their workers vaccinated by Jan. 4.
“There’s going to be some differences of opinion (on mandates),” said Tim Murray, president and chief executive officer of the Worcester Regional Chamber of Commerce, which has approximately 2,000 members.
Most of the concerns Murray has heard from members relate to the challenge of tracking who is — and isn’t — vaccinated, in addition to the responsibility of reporting weekly COVID test results.
Murray noted that many businesses agree that vaccination is the best way to end the pandemic.
Are the mandates legal?
Lawyer Michelle De Oliveira thinks OSHA’s temporary emergency mandate is legal and would likely stand up to court challenges.
De Oliveira, chairwoman of the Massachusetts Bar Association’s Labor & Employment Law Section, based her legal opinion on OSHA’s mission to protect worker safety.
“Because the COVID pandemic is considered and deemed a direct threat in the workplace. And because OSHA has a responsibility of ensuring the safety of employees. It’s akin to other requirements to protect worker safety,” De Oliveira said.
Prior court decisions could forecast the OSHA mandate surviving legal challenges.
Oliveira pointed to lawsuits that failed to overturn Gov. Charlie Baker’s vaccination mandate for thousands of state workers.
The reasons those challenges failed, said Oliveira — who made clear she was speaking in general terms — is the public hasn’t previously seen anything like the coronavirus pandemic. Given that landscape, the government and employers are trying to figure out what steps to take to keep their workers safe.
Another factor in OSHA’s legal corner, Oliveira said, is the mandate offers flexibility, including the option of weekly testing for those that refuse vaccination. And OSHA states it will reassess the mandate when the COVID-19 landscape become less severe.
“It shows that OSHA is trying to be reasonable,” Oliveira said.
In general terms, Oliveira said the CMS mandate could surpass legal hurdles. She pointed to mandatory vaccination policies imposed by hospitals in Massachusetts that survived court challenges.
Other issues pointed out by Oliveira include the potential cost of COVID-19 testing for employers. Businesses are not required to pay them, but there could be laws or collective bargaining requirements that make it necessary for employers to assume the costs.
There is also the question of how employers handle employees who experience adverse side effects to the vaccine. Sick-leave policies come into play and the mandates need to spell out what constitutes reasonable time away from the job.
Lawsuits are coming
Platzman of AIS predicts numerous challenges from businesses in state and federal courts.
“The OSHA and federal mandates are not right,” Platzman said. “I am vaccinated, and I believe in them. But I don’t believe in mandates.”
Crowley also believes in the vaccines. He recently got a Moderna booster shot after receiving two doses months ago of the Pfizer vaccine. But as Crowley sees it, mandates are bad for business.
“I’m confident in the effectiveness of the vaccines. Others have strong opinions the other way,” Crowley said.
Contact Henry Schwan at [email protected]. Follow him on Twitter @henrytelegram
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