“You can’t force people to get vaccinated,” Mark Thurston, president of CUSA Consulting, an electrical engineering and consulting firm in Hampton, said about President Biden’s executive order for federal contractors to do just that.
“I think it’s a great idea,” said Steve Duprey, a developer and owner of five Concord hotels, about Biden’s mandate for large employers. “It will save lives, and it will mean people will be more likely to travel.”
Biden’s vaccination mandate will affect less than a tenth of employers in New Hampshire, but it will cover more than half the state’s workforce.
Some employers fear the mandate will force desperately needed employees out of that workforce, or at least to smaller employers that are not covered by the mandate. But others hope it might coax those who don’t now feel safe to work side by side with unvaccinated colleagues, who often don’t wear masks, back into it.
At deadline, most of the regulations for the mandate hadn’t yet been released, but already Republican governors across the nation — including New Hampshire’s Chris Sununu — have vowed to challenge them in court. Yet there is a good chance that at least some of them could be in effect while being challenged.
“The easy advice to give is simply comply,” said David Pease, program manager of the N.H. Procurement Technical Assistance Center, of the mandate which requires all those working on federal contracts to get fully vaccinated by Dec. 8. “If you start doing this in the middle of November, you may not be ready in time,” added Pease. “You really only have a few weeks to get rolling on this.”
There are actually three vaccination mandates in Biden’s Sept. 9 executive order: one covering all businesses with 100 employees or more, businesses that engage in large federal contracts and another for health-care workers.
Together, they target more than 3,000 of the state’s 41,000 private businesses (8 percent), which employ roughly 300,000 people, about 57 percent of the private workforce.
The mandate for large employers has received the most attention, because it covers so many workers — 80 million nationwide and a quarter-million workers in New Hampshire. Only 755 New Hampshire businesses employ more than 100 people, according to the latest figures from the state Department of Employment Security.
The Occupational Safety and Health Administration mandate contains a threatened fine of up to $14,000 per violation, though enforcement will be problematic for the understaffed agency.
OSHA’s mandate might be the loosest of the three because it allows an alternative to vaccination: weekly COVID-19 testing. (It also allows unvaccinated employees to work remotely.)
But what kind of test would be allowed, who would give it, who would pay for it and what happens while waiting for the results? The expected answers to such questions should be revealed in OSHA’s new Emergency Temporary Standard, or ETS, which is expected to be released sometime this month.
Since the ETS will only be in effect for six months, OSHA can skip the regulatory process and put it into immediate effect in 29 states where it has direct jurisdiction (including New Hampshire). The agency can do this legally if “employees are exposed to grave danger” that the ETS can prevent.
It will be challenged, but the question is, will the courts allow the standard to go into effect while lawyers hash it out? And will most businesses comply while this plays out?
Most businesses contacted by N.H. Business Review said they would comply, some with anger and others with approval.
“We are getting a large and varied response,” said David Juvet, interim president of the Business & Industry Association. “Some members are very angry because it only applies to large employers. The others say that this is a serious pandemic that calls for extreme measures and the federal government is giving us cover.”
All are waiting for more details. Some are not even sure whether they would be covered by the ETS. OSHA has said that the 100-employee threshold will be determined by company, not each establishment, though the definition of “company” has yet to be spelled out.
That leaves someone like Tom Boucher, CEO of Great N.H. Restaurants, scratching his head, since none of his restaurants, be it T-Bones, CJ’s, Cactus Jack or The Copper Door, has more than 100 employees, but they all add up to 800 employees. Each restaurant pays separate taxes, so they should all be considered separate companies, Boucher would argue.
That’s why he is taking a wait-and-see approach. He has no idea how many of his employees are vaccinated. “We don’t ask them. It’s none of our business,” he said.
Concord-based Duprey Cos., with its 200 employees spread out in four hotels, the Grappone Conference Center, and property and facilities management arms, is just one company and will clearly be covered by the ETS. Duprey isn’t going to bothered with the testing alternative.
A few of the employees have indicated they may refuse the vaccine. If they do, he said, “I’ll wish them well.”
Getting a shot “is no big deal,” he said, quoting Keith Richard of The Rolling Stones. “There are worse mandates. I got called up for the draft in 1971. This is a lot easier.”
What is a “big deal,” according to David Worthen, CEO of Worthen Industries — which employs 500 worldwide, about 200 of whom are in Nashua — “is to lose some employees. If we could get everybody vaccinated, that would be great. Our concern is getting product out the door. There are people who would potentially go to another company because they will go to their last dying breath not to get vaccinated.”
Hypertherm, which has more than 1,000 employees in Hanover and Lebanon, will comply with the mandate but will allow employees to test.
“We are certainly supportive of the effort,” said CEO Evan Smith. “We are just awaiting guidance on how it is going to be done.”
There are more details available on the federal contractor mandate, which is an extension of one already in place for federal employees. Draft guidance was issued on Sept. 24, and it requires covered workers to get vaccinated by Dec. 8.
The mandate also applies to federal employees — there are about 8,000 in the state — but it’s not clear how many employees of federal contractors will be covered.
The mandate applies to contracts valued at over $250,000, but it applies to both prime contractors, subcontractors and on down the line, unless the subcontractor is just shipping supplies. NH Business Review found some 65 New Hampshire companies with contracts over $250,000 since January 2021, but there are a lot more subcontractors than that.
In terms of workers, the Procurement Technical Assistance Center — which helps New Hampshire businesses get federal contracts — estimates there are about 50,000 people working for federal contractors in the state. Some are at companies with more than 100 workers and would be covered under the OSHA standard, but Pease said that more than half of them are in smaller companies.
The contractor mandate doesn’t allow testing as an alternative, and the requirement includes people working remotely (if working on the contract). It also includes everyone at a facility where the contract is being fulfilled.
But it doesn’t include those working on existing contracts, just contracts procured or extended and optioned after Oct. 15.
The guidance still has to be approved by the director of the Office of Management and Budget, but there isn’t much legal wiggle room here, since the federal government can usually put what it wants into a contract.
On the opposite side of the coin, state Rep. Norm Silber, R-Gilford, plans to sponsor legislation prohibiting those with state contracts from requiring a COVID vaccination as a condition of employment.
“They have to choose. If they want state money, they can’t mandate it,” Silber said. If the bill passes, and Silber isn’t sure it would, contractors would have to choose between their state and federal contracts. There are also three other bills specifically concerning workplace vaccination requirements, though the guidance claims the regulations would “supersede any contrary state or local law or ordinance.”
Pease of the Procurement Technical Assistance Center expects legal challenges, but now that the standard has been issued, he suggests businesses prepare for it. Yes, it would be hard for a defense contractor to lose even one employee, he said.
“These people are hard to replace. On the other hand, if you can’t follow federal rules, perhaps this isn’t the best business to be in.”
BAE Systems — with more than 6,000 employees in New Hampshire — would fall under the mandate for large businesses, but it is also one of the state’s largest federal contractors.
“We intend to fully comply with the Federal Safer Workplace Task Force guidance and are working through how we would carry out its requirements,” said spokesman Tim Paynter.
The company declined to say how many of its workers are vaccinated.
As for Thurston at CUSA, which does millions of dollars of electrical work for the Federal Aviation Administration, he’s not sure how he’ll comply. He thinks that half of his 35 employees are vaccinated. “I’m not going to persuade the smartest guy to get vaccinated. Can’t force them.” As for his subs, he asks, “Is this going to apply to the guy who brings the porta-john?”
This last vaccine mandate was the first, at least when it was issued for nursing homes.
On Aug. 18, Biden said workers there must get vaccinated and on Sept. 9, he expanded it to other healthcare workers. According to Employment Security, there are 2,751 businesses in the healthcare and social services field in New Hampshire that together employ more than 91,000 people. Roughly 2,550 of them have fewer than 100 employees, so they would be required to comply under the healthcare mandate only. The rest overlap with the large employer mandate, but the health-care mandate would prevail and it’s stricter. There is no weekly testing alternative to vaccination.
However, the mandate only applies to those who receive funding from the Centers for Medicare & Medicaid Services.
Some nursing homes and hospitals were already mandating the vaccine for their employees. Genesis Health, the state’s largest long-term care provider, with 25 locations and roughly 2,500 employees, required a vaccination by Sept. 22. Dartmouth-Hitchcock Health, the health-care provider with more than 13,000 employees statewide, set a Sept. 30 deadline. Both said most were willing to be vaccinated but would not reveal how many refused.
“While we unfortunately had some employees who were not willing to comply with the policy, we met our deadline of 100 percent vaccinated staff, as promised,” said Lori Mayer, Genesis spokesperson.
Dartmouth-Hitchcock “is now doing a final review of those who have not provided documentation. On or about Monday, Oct. 4, 2021, employees will receive corrective action and notice that their employment will end,” said spokesperson Audra Burns.
On the whole, nursing homes support the mandate, said Brendan Williams, president of the N.H. Health Care Association.
Currently, 80 percent of nursing-home staff are fully vaccinated, but they are “dealing with our most vulnerable people. It’s a moral imperative” to get vaccinated, he said. “We have one of the oldest nursing-home populations in the country.”
And while the residents are nearly all vaccinated, in a breakthrough case, “even a milder version of COVID could kill.” Given the acute nursing-home staffing shortage, a mandate is “the best of bad options.”
Peabody Place is one of the few nursing homes that doesn’t receive federal funding, but it mandated employee vaccinations anyway.
“We knew up front we could lose some staff, and we are really sorry to see them go,” said Executive Director Howard Chandler.
On the other hand, it seems easier to hire and retain people now, he said. “We like to think this makes us a more attractive place to work.”
Woodlawn Care Center in Newport was drafting its own policy when Biden’s announcement came out, so it’s holding out for the regulations. “Otherwise, the unvaccinated worker would just go to other places,” said Chris Martin, Woodlawn’s administrator.
Getting vaccinated is crucial, he said, because the nursing home is in the middle of its third outbreak that has affected a dozen people, one of whom was hospitalized and all but one of whom was vaccinated. The first outbreak — before the vaccine — spread to 33 people. Six were hospitalized, and four died.
SolutionHealth was also drafting a vaccination policy for the 6,500 employees of Elliot Hospital in Manchester and Southern N.H. Medical Center in Nashua, “but we are waiting for the exemptions,” said spokesperson Dawn Fernald.
Other hospitals have gone ahead, spurred on at the urging of the N.H. Hospital Association. Concord Hospital set an Oct. 23 deadline, as did the three hospitals under North Country Healthcare. Wentworth-Douglass Hospital’s deadline for a second shot is Nov. 12.
“It’s just the right thing to do,” said Steve Ahnen, the Hospital Association’s president. “This isn’t about losing jobs. This is a question of saving lives.”