The Vaccine Mandate Kicks In at 100 Employees. What If You’re at 98?

For small businesses hovering just under the federal vaccination guidelines, navigating this period is tricky.

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Christie Thompson’s company, which sells and services semitrailers, is looking to fill a handful of open positions. But the challenge isn’t just finding qualified workers. Currently, 98 people work at the company. Adding two more employees would mean crossing the 100-person threshold that the Biden administration set as its standard for compliance with a new rule requiring large companies to mandate coronavirus vaccines.

“As the person who’d be in charge of making all this work, it’d be a nightmare,” said Ms. Thompson, who runs human resources for Apex/Rentco Trailer Sales & Service, based in Jeffersonville, Ind. She estimates that three-quarters of the employees are unvaccinated.

Ms. Thompson would feel safer knowing her staff was vaccinated, though she said she empathized with those who are hesitant and had to surmount her own fears to get the shot. “I wish everyone would just go out and get the vaccine and be done with it,” she added. At the moment, it’s a wish and not a rule at her workplace.

The Biden administration last week released the details of a sweeping measure requiring large companies to mandate coronavirus vaccinations by January or start weekly testing of their workers, expanding on a plan announced in September. The rule sorts employers into big and small right at triple digits, covering businesses with at least 100 workers. That has left some companies on the cusp fielding calls from wary employees. Some bosses are weighing whether to delay hiring to keep head counts in the 90s as they grapple with people who remain resistant to vaccination, and want assurances that the mandate will not apply to them.

The Labor Department said it chose the 100-person benchmark because it is confident that employers with at least that many workers have the administrative capacity to enforce the mandate. But the vast majority of American employers — nearly six million of them — do not meet the 100-worker standard. For companies that fall directly below the Occupational Safety and Health Administration’s threshold, it is a confusing period.

Dawn Stanhope employs 96 people at the Boys & Girls Clubs of Manatee County, in southwest Florida. She received a frantic phone call on Monday morning from one of her workers, who wanted to know if they would be affected by OSHA’s new rule. If it applied to their organization, the worker said, she worried she should look for another job.

Ms. Stanhope assuaged the woman’s concerns, explaining that the rule covers employers with 100 or more workers. The Boys & Girls Clubs of Manatee County, which offers after-school and summer programming for children, had been struggling to find staffing. That now feels like a boon to Ms. Stanhope, who is relieved to avoid the mandate.

“We might lose a quarter of our staff, which would be pretty devastating,” she said.

If she had the opportunity to fill her job openings now, pushing the organization over the 100-worker threshold, she said she most likely would do so but it would be a difficult choice: “It’s easier not to have the conflict and potential of losing people.”

Ms. Stanhope’s position is made more challenging by the possibility that the rule could be in flux. The Labor Department said during its comment period, over the next 30 days, that it would consider lowering its 100-worker cutoff, though such a change would be unusual.

“Historically the key components of a proposed rule generally remain the same,” said Rhett Buttle, senior adviser for Small Business for America’s Future.

Some small-business owners with under 100 workers have put vaccine mandates in place anyway, concerned about their own safety and that of their clients and customers. Others were pleased to learn they fell outside the scope of OSHA’s rule, anxious about losing workers during the country’s labor shortage — though the experience of Tyson Foods, a large employer with a vaccine mandate, indicates the impact on staffing might be limited. And some were uncertain whether they were covered under the measure, raising questions about its relevance to remote, part-time, seasonal and other categories of workers.

A federal appeals court temporarily blocked the rule on Saturday, in a sign of the legal battle the measure will face. The Biden administration said the vaccine rule was an important step not just for public health but for economic recovery: “The single worst disruption businesses have faced is workers getting sick with Covid-19,” said Kevin Munoz, a spokesman for the White House. “The administration has taken these actions to protect workers, not penalize businesses.”

Many employers affirm the economic advantage of these requirements. “With our team vaccinated, it’s less likely that we’ll have an outbreak and have to close the restaurant,” said Patrick DePula, owner of Salvatore’s Tomato Pies, a small restaurant chain in Wisconsin that started requiring its workers to get either vaccinations or face weekly Covid testing three months ago.

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The Boys & Girls Clubs of Manatee County has struggled to find staffing.Credit…Octavio Jones for The New York Times

Some small-business representatives are confident OSHA’s guidance will encourage a wave of vaccine mandates even from employers that aren’t legally obligated to adopt them. A recent national survey of 1,000 small-business owners, by Small Business for America’s Future, found that 68 percent supported vaccine requirements for large businesses.

Mr. Buttle, who helped lead the private sector introduction of the Affordable Care Act, anticipates that many small-business owners will look to the example set by large and midsize employers, just as he saw with companies that weren’t legally obligated to offer health insurance after the Affordable Care Act’s passage but did so anyway.

“This may give them the extra nudge to say now is the time to do it, even if they’re not required to do so by the law,” Mr. Buttle said.

In the meantime, many employers are scrambling to determine the rule’s legal requirements. OSHA’s standard applies to part-time workers but not independent contractors. Remote employees and those who work exclusively outdoors don’t have to comply with the rule’s requirements, but they are included in a company’s head count. And seasonal workers employed directly, rather than through a temporary staffing agency, count toward the threshold as long as they’re employed while the Labor Department’s rule is in effect.

The intricacies of the rule have left some business owners with a human resource headache. Yvonne Sawyer, chief executive of the nonprofit Hope for Miami, initially puzzled over whether she would have to mandate vaccines, because her organization’s 84-person staff swells to 125 in the summer (right now she wouldn’t be covered by the standard). As she searched for answers, she analyzed how many of her workers were already vaccinated. An internal survey showed that 89 percent got the vaccine or intend to do so.

Equipped with that information, Ms. Sawyer wished she was more clearly covered by OSHA’s rule so she could have legal justification for putting a vaccine mandate in place, even with the political tensions over Covid restrictions in Florida.

“I can say they made me do it,” she said. “It doesn’t look as though the variants are going away and I’d like to protect my people, not only the staff but the people we serve.”

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