By Ray Birch
KALAMAZOO, Mich.—As the country waits to learn the details of the Biden Administration’s COVID-19 vaccine mandate, some credit unions are likely breathing a sigh of relief, while others may see the issue completely differently, says one employment lawyer.
On Sept. 9 the Biden Administration announced a plan to issue Executive Orders requiring COVID-19 vaccines for certain federal contractors. The Administration also indicated that it will have the Occupational Safety and Health Administration (OSHA) issue an emergency rule requiring companies with more than 100 employees to vaccinate their staff or require weekly COVID-19 testing.
Sean Crotty, partner and chair of the labor and employment department at Honigman, LLP, told CUToday.info that the announcement may create a feeling of relief for some credit unions, depending on their outlook on vaccinations and all the issues being raised.
And he added that even small credit unions with fewer than 100 employees will still have to weigh the risks related requiring vaccinations to protect staff and members versus losing employees who refuse to be vaccinated if it is required as a condition of employment.
But for CUs with more than 100 employees, Crotty believes many may see the mandate as providing relief from having to make a very difficult decision.
“For those who will have to comply, for some this is a blessing in disguise,” offered Crotty. “Many employers have been on the fence about requiring vaccinations, but had concerns about employee perception. Now they have the opportunity to mandate the vaccination and point to the government as the reason. There is a benefit to some employers in that respect. The detriment, we anticipate, is that some employees will leave—those who are against vaccination and are strident in their beliefs. Some will stay and undertake the weekly testing alternative.”
As CUToday.info reported, at least three credit unions are requiring their employees to be vaccinated against the coronavirus as a condition of their employment: Credit Union of Texas in Allen, Allegacy FCU, Winston-Salem, N.C., and Hawaii State Federal Credit Union in Maui.
What has prevented many smaller employers from mandating employees get vaccinated, offered Crotty, is the current war for attracting and retaining talent. Staff shortages have led to concerns about losing more people in an already tight labor market if vaccination is required.
The President’s Order
President Biden has directed OSHA to develop an emergency temporary standard (ETS). The ETS will also require covered employers to offer employees paid time off for vaccination and to recover from any side effects from the vaccine. OSHA will have the ability to fine noncomplying businesses up to approximately $14,000 per violation.
Sean Crotty
Crotty pointed out that credit unions with fewer than 100 employees must still adhere to the mandate if they are considered a federal contractor. He added that OSHA is basing the employee cutoff not on the number of employees per location, but on total employees within a company.
Organizations with fewer than 100 employees will continue to wrestle with the related issues, Crotty said.
“OSHA’s emergency temporary standard will allow for weekly testing as an alternative to be vaccinated,” reminded Crotty. “So, credit unions subject to the OSHA rule that are concerned about losing staff may be able to focus on the weekly testing alternative.”
Working to Prevent Defections
Crotty believes companies with more than 100 employees will see at least some staff leaving to go to work at organizations below the mandate threshold.
“Employers can seek to prevent those defections by highlighting that weekly testing is an alternative to vaccination, and by making the testing process as seamless as possible for those employees,” he suggested. “What these employers can do in advance of the mandate being finalized is to arrange for on-site testing that makes the process easy for employees.”
Crotty said in-house testing would likely be conducted by a third-party vendor.
“But it remains to be seen what OSHA is going to require as to testing protocols. Some have suggested that even the at-home tests may be accepted,” stated Crotty, noting major retailers have discussed making the tests available at a price that simply covers their costs.
‘Wait & See Mode’
Crotty noted there are still many questions to be answered regarding the mandate that has yet to be finalized by the Biden Administration, including questions around whether the rules require employers of more than 100 people to verify their workers are vaccinated or tested weekly for COVID-19, and whether the business or unvaccinated employees will have to pay for the testing.
“Moreover, we don’t know how soon the OSHA standard will be issued, what it will say about topics like remote employees, how to count employees for the coverage threshold, and when it will go into effect,” said Crotty, who acknowledged many employers have been caught off guard by what some consider a surprise move by Biden. “And the OSHA rule will be challenged in the courts. Overall, we are in a wait-and-see mode.”
Indeed, CUToday.info participated in one online discussion hosted by a state league last week during which one CEO of a credit union with hundreds of employees said he would file suit to block being forced to require employee vaccinations.