With the announcement September 9 of the Path Out of the Pandemic, President Biden’s COVID-19 action plan, and its accompanying vaccine requirement, those in franchising hurriedly started discussing and dissecting what such a requirement could mean for franchisors and franchisees. Just four days later, the questions outnumbered the answers, a situation that’s likely to persist for weeks as the Occupational Safety and Health Association finalizes its Emergency Temporary Standard.
During what Michael Layman described as a “rapid reaction” webinar September 13, the International Franchise Association’s VP of federal government relations noted, “There are very few details about the requirements that we’re going to discuss today, so we just ask for your grace and understanding about what little hard information there is to work with at present.”
Jim Paretti Jr., a shareholder at labor and employment law firm Littler Mendelson, was more animated. “I will share my rapid reaction which was ahhh! Really? One more thing thrown at us. Every time we think we’re getting the knack of it or we think we’re on a course or we think we have a plan, something comes along and scrambles the deck.”
The webinar, titled “Potential Impacts of Possible Vaccination Requirements,” focused on the portion of President Biden’s plan that will “require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.”
Tamra Kennedy, a Taco John’s franchisee with nine locations in Minnesota and Iowa, said she “kinda did the freak out” when the announcement was made as she thought about all the unknowns.
“As soon as the announcement was made I thought OK, this is kind of a storm here, and how an individual owner responds to it is going to be, I think, really important,” she said. “That we focus on making sure we kind of thread this needle with what is our responsibility is from a compliance perspective but also what is our responsibility to our employees and their families and to each of our communities.”
Here are some of the knowns and unknowns.
Counting to 100.
On this point, said Paretti, the Department of Labor, which oversees OSHA, “has been pretty clear that it will be per employer, per business, not per worksite or location.” As to the concern that any joint employer ambiguity could mean franchisors and franchisees are lumped together as employers, Paretti said, he doesn’t expect that. “I do not expect that OSHA is going to come out and say, if Jim has a single unit franchise in Washington, D.C., that employs 40 people, that Jim’s single unit franchise is going to be combined with every other unit franchise in D.C. or every other franchise nationally … I don’t expect OSAH will land there.”
Who handles the testing?
Many questions remain here, said Paretti, including who covers the costs of testing, are hourly employees paid for the time it takes to travel to testing sites and how will employers track regular testing if they allow that option versus requiring vaccination. He expects the Emergency Temporary Standard to provide those details and encouraged those employers listening to at least start working on a notification to employees of any change in policy.
Can an employer terminate an employee who won’t get vaccinated or submit to testing?
“OSHA, I’m certain, is not going to put in bold type, ‘If the employee doesn’t take a test and if the employee refuses to vaccinate, you may fire them, no questions asked,” said Paretti. As a practical matter, he continued, getting a COVID test could potentially be looked at as a drug test. “If an employee refuses to take a drug test where they’re required to, can you terminate that person? Yes,” he said, though whether an employer should take that action is another question, and there are numerous HR considerations.
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