When the Supreme Court blocked the Biden administration from enforcing its vaccine-or-test requirement for large private companies last month, many companies were faced with a serious question. In the absence of a mandate, how could they encourage workers to get vaccinated?
For some construction companies in Wisconsin, the answer was a cash incentive.
“The most common cash incentive that I have seen is $100,” said Joseph E. Gumina, who leads O’Neil, Cannon, Hollman, DeJong & Laing’s labor and employment practice group in Milwaukee.
Cash incentives are only one of the ways companies have tried to encourage vaccination. Some have brought COVID-19 vaccination clinics to their offices to make it easier for employees to get shots. Others have offered workers an additional day of vacation for getting vaccinated, Gumina said.
“I have seen one employer try to encourage its workforce to become vaccinated by informing them that they would not be permitted to return to the office from remote working unless they are fully vaccinated,” he added.
The Supreme Court’s stay of the vaccine mandate came on Jan. 13, only days after the Occupational Safety and Health Administration’s emergency rule for businesses had taken effect. Before being put on hold, that mandate had required that employees at businesses with 100 or more workers get vaccinated or submit a weekly negative COVID test before re-entering the office. Unvaccinated staff members were further required to wear masks indoors.
“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the court wrote in an unsigned opinion.
“Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
The Associated Builders and Contractors, a mostly non-union industry association with more than 21,000 members, came out against the federal mandates, becoming one of the parties to filing an emergency appeal against it.
“The practical concern there is that contractors didn’t have a lot of time to react to the regulations that were issued,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs.
Contractors were also worried about the supply of COVID tests and feared that if the mandate remained in effect, some employees would leave large companies for smaller ones where they wouldn’t be required to take weekly tests, Brubeck added.
Although ABC was opposed to the mandate, the organization has always encouraged its members to get vaccinated.
“We’ve been pushing the vaccine voluntarily,” Brubeck said. “We just feel like the requirements by the government are a bridge too far, and frankly there are a lot of legal arguments that make it very difficult to accept the mandates that were pushed on federal contractors and through the OSHA ETS rule.”
Some local and state governments have meanwhile adopted their own vaccine requirements and testing policies. So even without a federal mandate in place, some contractors will nonetheless find themselves with having to comply with vaccination requirements.
“It’s going to be another patchwork of laws and regulations that they are going to have to deal with on top of everything else,” Brubeck said.