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Michigan companies await final legal verdict on Biden vaccine mandate

Bridge Michigan 
Dec. 20, 2021
Paula Gardner

Michigan’s larger businesses are heading into the holiday week with renewed uncertainty over the federal COVID-19 vaccine mandate for workers announced months ago by President Joseph Biden.

But legal and business experts said Monday that clarity may come just days into the New Year, when the U.S. Supreme Court is expected to say whether it will hear arguments on the constitutionality of the mandate, which will affect an estimated two million workers in Michigan.

Debate over the mandate — which requires companies with more than 100 workers to ensure their employees are fully vaccinated against COVID-19 or submit to weekly testing — was revived Friday when a divided Court of Appeals in the 6th Circuit in Cincinnati reversed rulings from Louisiana courts that effectively hit pause on worker mandate across the U.S.

By January 10, employers of at least 100 people will have to have a vaccine mandate plan in place, according to regulations. They get another month — until February 9 — until they face fines if they don’t have a plan for testing unvaccinated workers, so long as the employer is acting in good faith toward compliance.

However, appeals already are being made to the U.S. Supreme Court, where some Michigan business experts say they believe the final ruling will come.

Until the Supreme Court decides whether it will hear the case, the rules are “sort of in this limbo-land, going back and forth,” said attorney Matt Disbrow, a partner at Detroit-based Honigman law firm and leader of its employment division.

Michigan Attorney General Dana Nessel said Monday she’s prepared to advocate for the mandate if other Democratic attorneys generals are willing to draft a legal briefing to the Supreme Court. Michigan’s Republican-led Legislature has backed a lawsuit seeking to block the vaccine mandate.

Disbrow said any Supreme Court action likely would take place on an expedited basis due to the urgency of the coronavirus. In Michigan, the state’s seven-day average of new COVID cases dropped to 4,667 on Monday, down from 5,381 a week earlier. But health officials are bracing for a winter surge in the more transmissible omicron variant, and the state’s test positivity rate remains in the mid-teens, an indication that virus spread remains rampant.

A move by the conservative-tilting U.S. Supreme Court, Disbrow said, “can provide some certainty and finality for employers (who are asking), ‘Do we have to comply with this or not?’”

Biden announced Sept. 8 that the vaccine mandate was coming for larger employers, along with mandates for federal workers and contractors. Guidance for larger employers was released by the Occupational Safety and Health Administration Nov. 4, but the order’s effect was put on hold by a lower court two days later.

That’s left employers to sort out their approach, Disbrow said, as the public health aspects of vaccines continue to have political implications and have left workplaces and nearly every other aspect of public life divided over whether vaccines should be required.

Many companies in the state set up their own mandatory vaccination policies in preparation for the federal deadline or because they and their employees wanted the health protection afforded by broad vaccine protections.

Others resisted setting a mandate, even as they encouraged the vaccines, hoping that a lighter-handed approach would coax more workers to get vaccinated, business leaders said.

However, some employers — particularly in heavily Republican areas of Michigan — still seek advice over how to manage the mandate with a workforce largely resistant to the shot. About 62.8 percent of the state’s residents have at least one dose of the vaccines, compared to a national average of 74 percent.

“We have some employers who have a significant portion of their employee base who are not vaccinated, and it will create real operational problems for them if they have to send these people home,” Disbrow said. “They’re looking for ways to provide options to employees that will cause the least amount of disruption to their workforce.”

Disbrow said there are few options for large businesses once the mandate takes effect, along with fines of $16,653 per violation and possible additional penalties.

Some may opt instead for allowing regular employee testing and mandatory masks, but there are also unresolved questions for that approach, including whether employers are required to pay for tests if workers decline vaccines.

The Republican-led Michigan House of Representatives recently passed $100 million in funding to assist private businesses in obtaining COVID-19 tests for staff that have received an exemption from any government-mandated vaccine mandate.

Sandy Baruah, president and CEO of the Detroit Regional Chamber, said testing availability could be an issue for companies in the coming months.

“Two months ago, it was easy to get an antigen test or even get a PCR test at the local pharmacy,” Baruah said. “Now, you’re lucky to find any one of them at all.”

He continued: “As the mandate takes effect, there could be huge compliance issues, backlogs, logistical challenges, etc.”

In October, the Michigan Chamber of Commerce led a coalition of business groups urging Biden to drop the business vaccine mandate, contending that the government shouldn’t make decisions for private employers. They also said they feared that Michigan businesses, already facing a shortage of workers, would lose many more if the mandate takes effect.

“The administration failed to listen to Michigan businesses regarding the significant problems the mandate will cause,” Wendy Block, vice president of government relations for the Michigan Chamber, said Monday.

Amid continuing uncertainty, the chamber is advising companies with 100 or more employees to continue to prepare to initiate the new rules.

According to a recent Detroit chamber statewide poll of registered voters, also uncertain is whether the mandate will yield the vaccination results Biden said the nation — which is nearing its third year of pandemic crisis — needed to protect people’s health and the U.S. economy.

Requiring a vaccination would lead to a 67.5 percent vaccination rate among workers, according to the survey, released Dec. 15. Yet not requiring a vaccination would lead to a 66.4 percent vaccination rate among them, it said.

The survey also said that 77 percent of unvaccinated workers would quit their job if they were forced by their employer to get a vaccine.

But it’s unclear whether such surveys reflect the real-world decisions of workers. In early October, Henry Ford Health System released data showing that only a tiny sliver of its workforce actually chose to leave rather than receive a system-mandated COVID vaccine.

“Obviously, companies have to continue to operate and there’s a balancing act that they’re going to have to go through,” Disbrow said. But he said he tells clients that “unless something happens, you’re going to have to comply with these OSHA regulations or you’re going to be subject to fines.”

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