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Most Nebraska employers not yet ready to mandate COVID vaccines

Most Nebraska employers not yet ready to mandate COVID vaccines

Tyson Foods made waves last week with its impending requirement that all 120,000 of its employees must be vaccinated against COVID-19.

Tyson, which employs about 10,300 people in Nebraska, joined the likes of Microsoft, Disney, Google and United Airlines in mandating vaccinations. But other companies operating in the Omaha area haven’t adopted that policy — yet.

Some of the city’s largest employers, including Union Pacific Railroad, First National Bank of Omaha and Mutual of Omaha, confirmed to The World-Herald last week that those companies don’t have any vaccine requirements in place for their workers. But some Omaha-area businesses do require masks for all employees, or at least those who have not been vaccinated.

“I have not found any private-sector firms that are requiring vaccinations, but they’re all encouraging it,” said David Brown, president and CEO of the Greater Omaha Chamber of Commerce.

Holley Salmi, vice president of public affairs and policy for the Nebraska Chamber of Commerce and Industry, echoed that, saying the organization isn’t aware of any other companies in the state with the same vaccination requirements as Tyson.

That could change in as soon as a few weeks.

R.J. Stevenson attorney headshot

Stevenson

R.J. Stevenson, an attorney with Baird Holm LLP in Omaha, said he’s had discussions with some employers, particularly in the health care industry, who wish to require their employees to get vaccinated — but are holding off at least until the Food and Drug Administration fully approves the COVID-19 vaccines. That could come as soon as next month for the Pfizer vaccine.

While full approval by the FDA does not necessarily add legal heft, Stevenson said, it would give companies more confidence in requiring employees to be vaccinated because the vaccines will have been more fully vetted.

Stevenson believes that between that and other companies mandating vaccinations, the dominoes will be “starting to fall.”

“When employers see other employers requiring it, they will feel comfortable about requiring it as well,” he said.

He added that there’s risk in a company pulling the trigger too early.

If other companies don’t follow suit, the company could see part of its workforce leave for employers who aren’t requiring vaccinations.

“Most employers would not be able to operate if they lost 25% of their workforce, or perhaps even 5% or 10%,” Stevenson said.

Dr. Anthony Fauci, the chief medical adviser to President Joe Biden, recommended Friday that businesses and colleges consider requiring people to get vaccinated against COVID-19 in light of the surge of U.S. cases driven by the delta variant.

Fauci said that he opposed a federal vaccine mandate but that the velocity of COVID-19’s spread should spur private organizations to think about requiring shots.

“I would encourage private enterprises to seriously consider the idea of mandating vaccination in the enterprise for which they are responsible, whether that’s a university or a place of business,” he said in an interview with Bloomberg Quicktake.

With the delta variant driving about 90,000 new COVID-19 diagnoses a day in the U.S., companies are increasingly making immunization a prerequisite for working on-site or patronizing businesses.

On Friday, United Airlines became the first major U.S. airline to require workers to be vaccinated. The Public Hotel in New York will mandate that guests and staff be inoculated, and soon New York City diners and theater patrons will have to show proof of vaccination.

Fauci said more companies should consider similar rules.

“We need to do whatever we can,” he said. “I know people don’t like mandates for them to do things that they feel encroach upon their individual liberty. But in fact, when you are in a public health crisis, sometimes you’ve got to look out for the good of the community as well as your own personal libertarian views.”

Jennifer Turco Meyer, an attorney who specializes in employee rights at Dyer Law in Omaha, said employers mostly likely can, in the absence of legislation or a court ruling, require COVID-19 vaccinations as long as they don’t violate a contract or an employee’s stated religious objection or disability claim.

“This is certainly a developing issue in the law that employment attorneys are watching very closely because it is changing day by day, week by week,” she wrote in an email.

If an employee claims a religious or medical exception, the U.S. Equal Employment Opportunity Commission says employers must be willing to make reasonable accommodations.

Recent federal court rulings seem to suggest that employers do have the authority to mandate COVID-19 vaccinations.

In June, a judge threw out a lawsuit filed by 117 employees who were fired by Houston Methodist Hospital in April over their refusal to be vaccinated. Last month, another judge ruled that Indiana University can proceed with its requirement that all students and faculty get vaccinated. An appeals court upheld the judge’s ruling last week. But the U.S. Supreme Court was asked in a filing Friday to block that plan, the first time the high court has been asked to weigh in on a vaccine mandate.

If a company’s employees are part of a union that has a collective bargaining agreement, Stevenson said vaccine requirements must be negotiated within the contract.

After Tyson announced its mandate, the United Food and Commercial Workers International Union, which represents about 24,000 Tyson meatpacking employees, called for exactly that.

In a statement, UFCW International President Marc Perrone called Tyson’s mandate “concerning” because it came before the FDA’s full approval of the vaccines.

While adding that UFCW members have a “high” vaccination rate, Perrone said, “UFCW has made clear that this vaccine mandate must be negotiated so that these workers have a voice in the new policy. UFCW will be meeting with Tyson in the coming weeks to discuss this vaccine mandate and to ensure that the rights of these workers are protected, and this policy is fairly implemented.”

Perrone also called for employers to provide paid time off for employees to receive and recover from the vaccine.

Meyer added that if employer mandates do survive legal challenges, any vaccine-related injuries suffered by any employee could be subject to workers’ compensation claims if the employee can prove that they suffered the injury in the course of their employment.

This report includes material from the Associated Press and Bloomberg News.


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