Employment Law Attorney

Jim Reidy

When it comes to President Biden’s vaccine mandate, ‘many employers were working with me to put in place a mandate, so in some ways they got covered or they were vindicated in their efforts,’ says attorney Jim Reidy.

President Biden has issued new vaccine mandates that will call for employers with over 100 workers to require vaccinations or weekly tests for employees. New Hampshire attorney Jim Reidy explained what the mandates might mean for New Hampshire businesses and residents in a recent appearance on “The State We’re In,” a production of New Hampshire PBS and the Granite State News Collaborative.

Q. What are some of the most common questions you’re getting from employers about this?

A. We’ve been flooded with questions. Does it apply to my workplace? How do they count the 100 employees? Is it full time, is it part time? Is it seasonal? Is it temporary? How far back do you look if I’m a federal contractor? Does it matter how many employees I have? Do we go through the same exemption process for religious and medical exemptions and, further, can we terminate someone who just simply refuses to get the vaccine, or do they have to go through the opt-out for testing?

Q. Are there any answers that we do have?

A. We don’t have any answers yet, and we fully expect to get something from OSHA soon. At the same time, there are as many as 20 threatened legal challenges, everything from the mandate is unconstitutional, to it conflicts with state law, to it isn’t consistent with CDC guidance, and so on.

In the meantime, we have a couple of things that we know that for private employers with more than 100 employees, depending upon how they’re counted, are going to be required to have their employees either fully vaccinated by a certain date, or that the unvaccinated get tested weekly. Their employer will have to keep records of vaccination or testing.

Q. How do you determine the 100-employees figure? Can you talk us through that?

A. Typically they have a snapshot period of time that they look at for purposes of judging how many employees you have. Typically it’s full-time or regular employees. Some statutes look at part-time employees over a certain number of hours per week, and some look at long-term temp or seasonal employees.

Another question that comes up is, what if we have operations in this state and operations in several other states: Are they all considered to be counted for purposes of the 100? I would guess at this point the answer is yes.

Q. You mentioned that there were about 20 lawsuits making their way through the courts. Is there any chance that that’s going to delay the mandate taking effect or the rules taking effect at all?

A. It’s hard to say at this point. All I can point to is two things. The first is that OSHA has authority under what’s called the emergency temporary standards, ETS, which means OSHA can adopt these standards to be in effect for, say, six months.

These standards don’t go through formal rule-making procedures. In recent years, however, four of OSHA’s ETS were vacated or stayed by courts for various reasons.

On the other side of the ledger, when employers on their own in the last six months had instituted their own mandates for the vaccine, there are at least four or five court decisions that sided with the employer as to the reasonableness of the vaccine mandate. In fact, the Justice Department came up this summer and said vaccine mandates are not illegal.

Ultimately it will come down to whether the president had the authority to issue this mandate himself in an executive order that is so widely sweeping.

Q. What’s been the employers’ reaction to the mandate?

A. Many employers were working with me to put in place a mandate, so in some ways they got covered or they were vindicated in their efforts. When they got pushback from their employees, they said, “Now we’ve got a federal mandate that was doing exactly what we wanted.” A lot of employers are grateful for the backup, however companies like Kellogg, Campbell Soup, Coca-Cola and others have written letters to the White House saying, “We need more clarity as to what this means and how it’s going to be applied.”

The one important thing to remember is, again, as the economy has recovered, we have very low unemployment and some 10 million jobs on fill. Right now, there is a suggestion that with a vaccine mandate, it’s going to be harder to fill some jobs.

This article is being shared by partners in the Granite State News Collaborative. For more information, visit collaborativenh.org.