SIDNEY — On Sept. 9, President Joe Biden tasked the The Occupational Safety and Health Administration with the duty to enforce a new COVID-19 vaccine or weekly testing assurance mandate for companies with over 100 employees, which could affect up to 80 million U.S. workers. He additionally ordered federal employees and contractors, as well as most healthcare workers, to be vaccinated.
But in Shelby County, where there is just a 32 percent general vaccination rate, and in Ohio in general, Biden’s legislation received a backlash from state legislators, the state’s health department, employee organizations and employees.
The Republican-generated State of Ohio House Bill 435, nicknamed “the Ohio COVID-19 Vaccine Fairness Act,” proposed to exempt employers and employees from those federally-mandated workplace vaccines, but the bill was not doing well. While no recent official statement has been issued, a representative in Bob Cupp’s office confirmed on Monday that HB 435 that was sponsored by Rick Carfagna, R- 68th District 68-R, and Bill Seitz, R-30th District, has “a lack of a consensus at this time.” Its predecessor, HB 248 (dubbed the “Vaccine Choice and Anti-Discrimination Act”), also failed to achieve consensus.
According to President and CEO of the Ohio Chamber of Commerce, Steve Stivers, HB 435 is “a backdoor toward eliminating the ability of a private company to regulate the safety of their work environment and the health and safety of their business.”
Overall, he said, the organization is opposed to “legislative action on vaccine mandates” — whether at the federal level or state level — calling them “unnecessary.”
“The economy should be kept ‘dynamic’ to allow free market forces affecting labor and customers to ‘reward’ or ‘punish’ businesses based on any decision they make with regard to vaccines. Heavy-handed government is rarely the right answer,” Stivers said.
“99.5 percent of our member companies have not mandated vaccines,” Stivers stipulated. “But that 0.5 percent who have, have done so through a thorough process by conducting an analysis where management decided it was the right decision. But the workforce and the private market will ultimately ‘reward’ or ‘punish’ them.”
For example, “some customers might reward companies for keeping everyone safe by mandating vaccines. Other customers, like those who are medically fragile, might also want to do business with a company that mandates vaccines. While still other other customers who may be an ideologue, an anti-vaxxer, might never want to do business with a company that chooses to mandate vaccines,” Stivers said.
There’s also the free market of labor, he pointed out, where employees may quit rather than doing something they don’t choose to do. Employees can also opt to work from home, and how, Stivers asks, “‘Will the OSHA requirement apply to remote workers? And will remote workers be included in that 100 employee count?’”
“HB 248 was a much more frontal assault on ‘employment at will’ because it said that employers could never mandate a vaccine,” Stivers said, but equivocated that “HB 435’s ‘conscience’ exemption essentially does the same thing.”
On the other hand, Stivers said the Ohio Chamber of Commerce also is “equally as forcefully opposed” to the OSHA rule, which is still in process, that would mandate vaccines for companies with more than 100 employees.
Essentially, Stivers said, the organization is opposed to any government mandates on business when it comes to requiring or exempting vaccines.
Should the federal mandate happen, due to the “supremacy clause,” no matter what legislation the state passes, the federal legislation takes precedence and will be enforced. Essentially, then, state legislation would only come into play for smaller businesses. Stivers says it would be easy for companies with 104 companies to ‘let go’ of five employees to avoid the federal mandate, but the federal legislation becomes more difficult to dodge when there are thousands of employees.
Stivers was equally critical of HB 435’s “natural immunity clause,” which he said is “problematic at best,” because it is too vague and lacks concrete scientific studies, raising concerns about the duration of natural immunity, along with questions surrounding the timing of testing, as well as the ability of tests to determine the amount of antibodies needed to be present to provide sufficient immunity.
“House Bill 435 dead for a reason. It was a bad idea,” said Stivers. “I still hope we can stop the federal rule, too.”
OSHA submitted the initial draft to the Office of Management and Budget on Oct. 12, and, following a review, it will be published in the Federal Register.
Stivers said he has not had a chance to examine the rule yet, but if it is like what he has heard, he would be prepared to work together with the national U.S. Chamber of Congress, other state Chambers, and individual Ohio county Chambers, and other organizations, if warranted, to oppose the federal OSHA ruling in court. Ideally, an injunction would be initiated within the required 90-day period companies have to comply with the new law. Ultimately, Stivers said, he believes the federal OSHA rule would be struck down by the courts due to an ‘equal protection issue,’ because it only applies to companies with more than 100 employees.
“As it relates to the issue of who needs to have the vaccine in order to perform their role or their occupation, et cetera, the Ohio Department of Health has really stayed out of that,” said Bruce Vanderhoff during a press conference held on Oct. 14. “We’ve really left it to organizations and businesses to examine the issue of how COVID-19 impacts them, their business, the workforce, and to address those issues at that level.”
Vanderhoff was was appointed chief medical officer by Gov. Mike DeWine on Nov. 5, 2020.
According to Pamela Riggs, commissioner of the Sidney-Shelby County Health Department, “if the health department would mandate wearing masks and vaccines, it would just make businesses more difficult to work. We want a relationship that is based on mutual respect and trust, so they will come in and ask questions.”
In Sidney, Jeff Raible, director of the Sidney-Shelby County Chamber of Commerce, wrote in an email that “although our Chamber has not taken a formal position on HB 435, any bill that infringes on a private employer’s right to determine what’s best for their business is of concern to our organization. The Sidney-Shelby County Chamber of Commerce believes strongly in the free enterprise system where private businesses operate in competition and largely free of government controls. We believe in the employer’s right to manage their businesses in the best way they see fit which includes protecting the health and safety of their employees and customers.”
There are 521 member organizations of the Chamber of Commerce, of which 42 employ 100 or more in Shelby County, so if this legislation goes into effect for all of them, it becomes a question of whether the health department can handle that many people needing a vaccine all at once. The Sidney-Shelby County Health Department has only 12 nurses to do vaccinations.
Should the federal mandate pass, Riggs said, scores of people in Shelby County could be lining up for vaccines. Riggs has a plan, however, that she believes will be enough to handle the volume.
“In terms of planning, Erica and I would sit down and find a place where we could get people through quickly,” said Riggs. “The idea would be to do something at the Fairgrounds and have a drive-through vaccine, with paperwork already filled out, with a coordinated entry and exit, to keep it moving. This is the model being done across the state.
“It’s almost like a factory, with stations to perform certain tasks over and over. Public health is amazing at this. They have been handling large numbers of medicine and vaccine distribution since 9/11,” Riggs explained. “If we needed it, we could call in the Medical Reserve Corps, and bring in retired nurses, part-time nurses, and others, to keep traffic moving along and process the paperwork.”
“Any Shelby County business can also call us, and ask for the director of nursing, Erica Lentz, to schedule us to come out, and we will deliver COVID-19 vaccines (along with optional flu shots) on-site to their employees during the day, evening, or weekend,” said Riggs.