The Biden administration’s attempt to impose a sweeping vaccine rule for private employers last year was met with a wave of state laws limiting company vaccine mandates. Texas and Florida were on the vanguard of that backlash.
Now that the Supreme Court has blocked the federal vaccine standard, which would have compelled large companies nationwide to mandate Covid-19 vaccines or weekly testing for a total of 80 million workers, businesses in Texas and Florida have been left to navigate complex local laws and muddled public health guidelines as they weigh how to protect their workers.
As the coronavirus increasingly makes clear that it is here to stay, businesses are feeling the pressure to reopen and re-establish some semblance of normalcy. That means figuring out what their safety precautions should look like, especially if their operations span states with drastically different pandemic rules.
The Walt Disney Company suspended its national vaccine mandate for Florida employees because of state regulations, even as it is working to keep the requirement in place for workers in its home state of California. A restaurant owner in Austin said he requested vaccines of his customers, but couldn’t check their proof of vaccination under state law. Hewlett Packard Enterprise has set up a crisis management team that meets twice weekly to evaluate Covid conditions and local laws in the 17 states where it operates, including Texas, and to assess the company’s ability to reopen offices and mandate vaccines or testing.
“Of course it’s challenging to keep track of shifting guidance at the national level or the local level,” said Adam Bauer, a spokesman for Hewlett Packard Enterprise. “Nothing about this pandemic has been uncomplicated.”
In the fall, with the economy picking up, a number of large national companies instituted vaccine mandates in the hopes of keeping workers healthy and on the job. A November poll of 543 companies from Willis Towers Watson found that 57 percent required or planned to require vaccines, though one-third said they would do so only if the Biden administration’s rule took effect. The Omicron surge mobilized more companies to consider such precautions.
In Texas and Florida, state officials maintained they wanted to protect the freedoms of workers by limiting the types of safety protocols employers could put in place. Many employers, though, have found that the regulations can be a barrier to keeping their workers safe and businesses open.
“It’s a bizarro world in Texas,” said Austin Kaplan, an employment lawyer who has consulted with many companies in Austin struggling with Texas’ vaccine rules. “In other states, you have to show proof of vaccination to dine. In Texas, you’re not allowed to ask.”
In Florida, where 65 percent of people are fully vaccinated, Gov. Ron DeSantis signed into law restrictions on vaccine mandates in November, arguing that “nobody should lose their job due to heavy-handed Covid mandates.”
Florida requires businesses to allow for an extensive list of exemptions that workers can cite to avoid a vaccine mandate, effectively making workplace requirements moot. Workers can avoid a company vaccine mandate if they are pregnant, say they are trying to get pregnant or use employer-provided personal protective equipment. Large companies that run afoul of Florida’s standard can be penalized as much as $50,000 per violation.
In Texas, where 59 percent of people are fully vaccinated, Gov. Greg Abbott issued an executive order in October declaring that no employer could compel vaccination from someone who conscientiously objects to it. This exemption effectively guarantees that no workers can be subject to broad vaccine mandates, according to labor lawyers.
The Texas Legislature passed a law in May saying institutions subject to any kind of government licensing — meaning all restaurants and bars — cannot require their customers to show proof of vaccination. Businesses that ask for proof of vaccination can face stiff penalties, including the loss of a liquor license.
“Making a vaccine passport illegal seems purely political,” said Adam Orman, who with Fiore Tedesco owns L’Oca d’Oro, a restaurant in Austin with 25 workers. He is also a co-founder of the hospitality association Good Work Austin. “It doesn’t give freedom to business, which is what most of the behavior from the state toward businesses during the pandemic has been.”
Mr. Orman requests that his customers be vaccinated for indoor dining — and will let them know when they call for reservations — but he stops short of asking for proof because of state law. Mr. Orman instructed members of his staff last spring that they had to be fully vaccinated, with booster shots, unless they had a medical or religious exemption. He said he was frustrated that he couldn’t promise them that the people they served would be held to the same standard.
“Our employees are working too hard to keep themselves safe and healthy so they can show up to work to serve people,” he said. “To have that one piece where we can’t require guests who are coming into the restaurant, to the safe place we’ve created, to be vaccinated — that hurts.”
The Texas and Florida laws have forced national companies that operate in the states to carve out exceptions to corporate policies.
Disney paused its vaccine mandate for employees of its Florida theme park in November, after the state made broad vaccine rules illegal. More than 95 percent of cast members at the park are vaccinated, a spokeswoman said. The Related Companies, a real estate firm that mandated vaccines for all of its employees in April, is no longer requiring them of its staff in Florida or any states where broad vaccine mandates are prohibited.
Other businesses have pushed back on Florida’s red tape. Norwegian Cruise Line Holdings sued Florida’s surgeon general in July, accusing the state of preventing it from “safely and soundly” resuming trips by barring it from requiring customers to be vaccinated. A judge ruled in the company’s favor a month later.
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Meanwhile, some companies run by managers who support the vaccines but question the idea of making them a condition of employment have welcomed Texas’ and Florida’s policies.
“I understand that every state has to make their policies of what their leadership feels like is right for the state, and it’s my job as a C.E.O. to adhere to it,” said Harold Westervelt, chief executive of the Texas-based tech company FileTrail, which has about 70 employees.
Some large national employers are maintaining their vaccine mandates in Texas and Florida by applying them only to people entering their offices. Whether that approach keeps companies out of the cross hairs of state officials could be tested when more workers are required to return to the office.
For example, the money management company Vanguard, which requires its U.S. workers to be vaccinated to enter its offices, will extend that same requirement to the Dallas office it plans to open this year. The private equity firm Blackstone, which is requiring vaccines and boosters for U.S. workers to enter its offices, is maintaining that policy in Florida.
The oil giant BP, whose 3,500 Houston office employees are working remotely, is requiring employees to be vaccinated or tested twice weekly and wear masks once they start going back in person.
Checkr, a human resources technology company that is opening a new office in Orlando, Fla., this spring, created a task force that monitors state regulations to set Covid safety policies for each of the company’s five U.S. locations and 845 employees. Employees in the San Francisco office have to wear masks, while those in the Denver office do not — though in both locations everyone going into the office has to be vaccinated.
The company says it has yet to make a decision about vaccination or masking policies for the Florida office, citing uncertainty about the state’s regulations.
“We’ve had to be really flexible, recognizing the virus is shifting and our understanding of what’s a safe work environment has changed,” said Linda Shaffer, Checkr’s chief people and operations officer. “Do I wish it wasn’t that way? Of course. Everyone wishes that.”
Brooks Barnes contributed reporting.