Businesses caught in the crossfire over COVID-19 vaccination policy

September 10, 2021

By Nick Reagan

CHARLESTON, S.C. (WCSC) – In a move impacting more than 100 million workers around the country, President Joseph Biden announced all federal employees will be required to get vaccinated.

In addition, he is also directing the Department of Labor to develop a rule requiring all private businesses with more than 100 employees to implement vaccination requirement. Alternatively, unvaccinated employees can opt for weekly testing. The move pits the federal government against South Carolina officials against vaccine mandates with business caught in the middle.

“Some of the biggest companies are already requiring this: United Airlines, Disney, Tysons Food, and even Fox News,” Biden said. “The bottom line: We’re going to protect vaccinated workers from unvaccinated co-workers. We’re going to reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.”

Across the nation, the vast majority of businesses employ fewer than 100 employees, making up about 53 percent of the workforce. In South Carolina, the numbers are similar.

In Charleston County there are about 1,500 employers with more than 100 employees compared to upwards of 70,300 employers with fewer than 50.

Frank Knapp with the South Carolina Small Business Chamber of Commerce says he doesn’t expect small businesses will be significantly impacted by the rule since most do not crest 100 workers. In fact, his organization classifies small businesses as those with fewer than 100 employees, while the federal government defines a small business as any business under 500 employees.

While most small businesses are under the 100-employee threshold and many of the state’s top employers are either large corporations, government agencies or healthcare providers there are a handful of mid-sized businesses that will have to make some tough decisions.

The Charleston Hospitality Group has 400-500 employees spread across half a dozen Lowcountry restaurants. Chief Marketing Officer J. Michael Walker says they’re weighing their options, but need way more details.

“You have to have a lot of manpower to enforce this type of law,” Walker said. “There are a lot of nuances in that and, frankly, it’s fine to come out with a mandate until you get to the nitty gritty of the law that comes from the Department of Labor. We’re just kind of operating as is for now.”

That rule from the Department of Labor has not yet been announced but Gov. Henry McMaster is already against it.

“They have declared war against capitalism, thumbed their noses at the Constitution, and empowered our enemies abroad,” McMaster tweeted. “Rest assured, we will fight them to the gates of hell to protect the liberty and livelihood of every South Carolinian.”

However, this back and forth between the state and federal government has left many businesses stuck in a no-win scenario.

“The biggest issue we have now is who do you follow. We have run into that with our local mandates verses out state mandates. We’re seeing that with our school systems mandates,” Walker said. “I am sure there is going to be a fight in court. . . We look at it as which agency is coming around and telling us what we have to do, and which agency ultimately determines whether we stay open or close.”

Walker says, in the end, they’ll just have to see who starts enforcing what. The Charleston Hospitality Group is not ready to mandate vaccinations just yet but says most of their employees are vaccinated anyways.

“We will need to come up with some kind of program,” Walker said. “Our management met this morning to determine the best course of action – whether we can implement testing on our own or if it is required to be done by the employee themselves.”

Business lawyer Amy Gaffney from the Gaffney Lewis law firm says a lawsuit challenging the mandate would not be a surprising.

“I do see cause for litigation where this rule is challenged,” Gaffney said. “I think there continues to be questions about where this violates an employees’ freedoms and whether it violates their constitutional rights to express themselves.”

She says employees are able to ask for an exemptions for religious or medical reasons, but beyond that there’s not a lot an employee can do to skirt a mandate since South Carolina is a right-to-work state.  Despite the near guarantee of a lawsuit, Gaffney says the federal government does have a legal mechanism for these kinds of mandates.

“OSHA, which is the Occupational Safety and Health Administration, has the authority to issue what it calls ETS’ or Emergency Temporary Standards. Which are rules or regulations that can be enacted in times that there is some grave danger to worker safety,” Gaffney said.

There are still a lot of considerations yet to be addressed, but whatever the details are Gaffney says it will be an additional burden on businesses. On top of keeping records of who is vaccinated and who is not, businesses will be required to provide paid time off for employees to go and get vaccinated.

“The mandate has so many uncertainties, one of which is whether it is going to applicable to remote employees,” Gaffney said. “Since so many people have chosen to work remotely or the work place has changed to one that facilitates more remote working, it is unclear if this is going to apply to those employees.”

Meanwhile, many of largest employers in the Charleston area have already implemented vaccine mandates. Those employers include: Joint Base Charleston, The City of North Charleston, The City of Charleston, Charleston County, The Medical University of South Carolina and Roper St. Francis Healthcare.

Among some of the largest companies still to require vaccinations as of Friday are: Charleston County School District, Berkeley County School District, Dorchester District Two School District, Boeing, Trident Health, Walmart and the US Postal Service.

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