Some business owners in the floral industry anticipate a new federal vaccine mandate affecting businesses with more than 100 employees may exacerbate the shortage of workers.
“We are in one of the greatest labor deficits that we’ve had in decades,” says Kevin McCarthy, president of Family Flowers, which employs 400 workers at 20 shops. “ probably — whether it is good or not overall — is almost unquestionably going to affect labor over the holidays and the hiring of new people.”
The Occupational Safety and Health Administration announced Thursday a requirement that employers with 100 or more employees must ensure their workers are vaccinated by Jan. 4 and, if not, that unvaccinated workers are masked and subject to weekly testing for COVID-19. The rule requires that unvaccinated workers be masked beginning Dec. 5; the testing requirement takes effect Jan. 4. The rule is estimated to cover 84 million employees, which is about two-thirds of private-sector workers, according to OSHA.
The rule is already being contested in court. The 5th U.S. Circuit Court of Appeals in New Orleans on Saturday granted an emergency stay of the requirement. At least 27 states have also filed lawsuits to challenge the rule.
Employers Should Take Action Now
Jessica Summers, an attorney at the Maryland-based law firm Paley Rothman, which provides members of the Society of American Florists with legal advice, says employers should not wait for the issue to play out in courts. Employers should be surveying their workforce to find out how many people are vaccinated and urging those who are willing to get vaccinated to do so, she says.
“Don’t assume it’s not going to go into effect,” Summers says. “You are risking having to scramble. Communicate with employees about what’s going on. It’s easier to tell employees, ‘Never mind, we aren’t going to have to do that,’ rather than, ‘Oh by the way, you do need get to vaccinated in the next two weeks.’”
The rule gives employers room to mandate the vaccine with no testing option (except for unvaccinated workers who are exempt for medical or religious reasons) or offer the testing as an alternative.
Surveying the workforce to determine vaccination rates can help employers decide how to implement the rule, Summers says. If vaccination rates at a company are high, the employer may decide it’s not worth keeping testing records and mandate the vaccine. If vaccination rates are low and employees say they aren’t likely to get vaccinated, the employer may offer the testing option in an effort to retain workers, Summers says.
Employers Worry About Labor Shortages
Some employers in the floral industry characterized the rule as a burden with many gray areas, and worried that it would exacerbate labor shortages just as holiday help is needed.
Patrick Busch, CEO of Len Busch Roses in Plymouth, Minnesota, says the rule will be an administrative hassle and have a negative effect on employee retention.
“This is a bunch of work for us. It’s a distraction and it’s competing with other things we have going on to stabilize our turnover,” Busch says. He is also concerned that it puts employers with more than 100 employees at an unfair disadvantage with smaller businesses.
“It’s frankly absolutely, unquestionably, ridiculous to target part of the nation for a mandate,” he says. “The subset they are targeting is causing inequities. Employees who quit will go work for smaller companies that aren’t subject to the mandate. It changes the employment landscape for companies over 100 and companies less than 100.”
McCarthy says a worsening labor situation could also affect the already increasing costs of goods.
“Any more people that walk for any reason is going to make the cost of goods continue to rise and the labor shortage a continuing issue,” McCarthy says. “There are so many people involved in the floral process, from farming to the end user. This could have a large impact.”
Questions Answered
For others, the rule raised many questions, ranging from whether to account for seasonal workers to who pays for testing. SAF took those questions to Summers.
- How do employers account for seasonal workers? Seasonal workers count toward the total number of employees. An employer must follow the OSHA rule anytime the total number of employees is more than 100. If an employer’s staffing level fluctuates near 100, Summers recommends following the rule to keep practices consistent.
- Do businesses with several locations count employees at each location or collectively? The answer depends on how the business is structured. Summers recommends consulting an attorney.
- Who is exempt? Any worker who works exclusively from home, works outside or works by themselves at the place of business is not subject to the OSHA rule. An employee who occasionally visits the workplace must have proof of a negative test within seven days prior to entering the business.
- Who pays for the testing? The employee is responsible for the cost of the testing, but an employer can offer to cover the cost. The rule does not address whether unvaccinated workers who are exempt for medical or religious reasons will have to pay for the test. Summers says she expects OSHA to address that soon.
- Does the rule override state or local laws? Yes, the rule trumps state and local laws, such as state laws that prohibit employers from implementing a vaccine mandate.
- Does the rule mean anything for businesses with fewer than 100 employees? Not yet, Summers says, but small businesses should be watching. OSHA has indicated that it is investigating whether the rule should be extended to employers with less than 100 employees, Summers says.
Have a question? One of the many benefits of being a SAF member is access to legal advice. Click here to find out more about how to use this member benefit.
Amanda Jedlinsky is managing editor of SAF Now.
