Editor’s note: The information contained in this article is for educational purposes only and is not intended to be medical or legal advice. Those seeking medical or legal advice should obtain the services of a competent attorney, physician or qualified health care professional. Although every effort has been made to provide current information, state laws and rules change frequently. Consequently, readers are advised to review their state’s vaccination and exemption laws and requirements frequently.
Question: I keep hearing different things about what I’m supposed to do and not do regarding the coronavirus (COVID-19). Some say I have to require social distancing, masks, vaccinations and/or negative COVID tests; others say I only can “recommend” them; still others tell me I can’t do anything. I’ll comply with the law — whatever that is — even though I disagree with it. Can you just tell me where to start?
Answer: I understand and appreciate your desire for a little clarity. It seems like every few days, a new rule, updated rule, retraction, interpretation or exemption appears. In fact, on Sept. 9, the Biden Administration unveiled new vaccination requirements for employers with more than 100 workers, mandating that:
- All employers with more than 100 workers require them to be vaccinated or tested for the virus weekly, and provide paid time off for vaccinations, which will affect roughtly 80 million Americans.
- Centers for Medicare and Medicaid Services extend their vaccination requirements to cover a wide range of health care settings, reaching about 17 million additional workers.
- Employees of the executive branch of the federal government and all contractors who do business with the federal government be vaccinated with no option to test out.
- Occupational Health and Safety Administration (OSHA) to fine employers $14,000 per violation for noncompliance.
The extensive new rules have reinvigorated the debate over whether vaccines, masks, quarantines and the wide range of requirements that surround them are healthy, necessary, effective, enforceable, avoidable and/or constitutional with respect to both individuals and businesses.
Complicating the issue is that authorities at all levels have been creating their own frequently modified rules and interpretations, prompting reactions ranging from posting strident warnings and barring entry to unvaccinated individuals on one side to ignoring the issue altogether and/or preparing legal challenges on the other. Politicization of the issue and the accompanying media frenzy have added to the confusion.
Identify what matters legally. What really should be done? My recommendation is that you do the following:
Avoid fines. If you have more than 100 workers — I did not say “employees” as you should count your contractors as well — comply with the federal mandate whether you agree with it or not, at least until the U.S. Supreme Court rules on its constitutionality. If you have more than 100 workers, you’re a large enough target to get the attention of federal authorities, meaning you could be in for OSHA fines if you
fail to comply.
Consider alternative corporate structures. Many equipment operators, particularly those who own the real estate on which their businesses are operated, already are familiar with the concept of dividing assets among businesses — for example, corporations for operating entities; limited liability companies (LLCs) for real estate; and possibly, one or more separate entities, either corporations or LLCs, for fleets of leased assets, parts and/or sales inventories, which then might be sold or leased into the customer-facing operating entity. These strategies, which have been popular for legal tax avoidance and/or asset protection purposes for many years, may now serve another important function, allowing you to divide workers among entities.
Limit your scope. Limit the onrush of extraneous information, and particularly if you have 100 workers or less, review your local rules — primarily because they are by far most likely to impact your day-to-day business operations. In cases like these, local officials generally are going to be much quicker to proactively investigate and assess penalties for violations than state and/or federal authorities. Consequently, because continuity — the ability to keep the doors open and service customers — is so important to most equipment and event rental businesses, the first step is going to be to check with your county and municipal authorities. These days, driven by the media attention to this topic, local governments appear to feel compelled to continuously update their websites regarding COVID-19 requirements, making these ordinarily more sparse resources an unusually robust source of current information, at least in many areas.
As an example, when I performed an online search of “local COVID-19 vaccination rules in New York City,” a long list of recently updated resources appeared indicating where vaccines were required, such as indoor dining, fitness and entertainment facilities; the effective date for these mandates, Sept. 13, 2021; a poster to be displayed by the affected businesses; a warning that any business that fails to comply will be subject to a fine; and a complaint hotline.
By contrast, a similar search in Tampa, Fla., yielded a city-run webpage that offered helpful vaccine locations, eligibility and transportation information without mandates, posters, threats of fines or apparent attempts to influence public opinion, along with a few articles regarding the recent political battle over a pending requirement that city employees be vaccinated, including the mayor’s comment, “This decision may not be the most popular but it is the right thing to do for all of our employees.”
After performing similar searches in a number of other cities around the country, it became clear to me that, regardless of where your facilities are located, you probably will have a fairly easy time of identifying what local requirements apply to your business, as well as how rigidly those requirements are likely to be enforced.
Broaden scope as necessary. After you’ve acquainted yourself with your local requirements, I would recommend checking with your state’s Department of Health and/or Human Services, or other similarly named entity, to learn what, if any, additional requirements and/or exemptions may apply. It might be preferable to look this up online, rather than calling them.
View these as supplements to your local requirements and comply with the most stringent in the event you spot overlaps. Why? Because, despite some well-publicized cases in which state laws were found to preempt local requirements or governors simply pardoned violators of local mandates, the path to that result involved a great deal of pain for the business owners involved, including arrests and incarcerations. No one in the equipment and event rental industry has time for that, nor do they have time to wait for the U.S. Supreme Court to hear their constitutional challenges.
Identify and use efficient resources whenever possible. The National Vaccine Information Center’s website provides an extremely helpful source of consolidated reporting of state requirements and exemptions at nvic.org/vaccine-laws/state-vaccine-requirements.aspx. This site contains brief explanations of, and useful links for, mask and vaccination requirements broken out by state, as well as lists of available exemptions for students, educators, daycare workers, health care workers, patients, inmates, the developmentally disabled and others. It also sets forth the relevant statutes in each state.
If you are really interested. For those who really want to know more, the World Health Organization (WHO), Centers for Disease Control and Prevention (CDC), National Institutes of Health (NIH) and the U.S. Surgeon General also maintain websites that provide statistics, warnings, studies, advisories, news and recommendations that may prove useful in some contexts as well.
My advice on this topic boils down to this: Keep your eye on the ball.
The rational response of a business owner to something like COVID-19 mask and vaccination requirements is largely the same as it should be with respect to any other legal issues that impact your business — identify the applicable laws and what you need to do or not do in order to comply with them and then make sure you do comply with them as quickly, completely and economically as possible. Doing anything else may not be a waste of time, but it’s likely to be expensive.
James Waite is a business lawyer with more than 25 years in the equipment rental industry. He authored the American Rental Association’s book on rental contracts and represents equipment lessors throughout North America on a wide range of issues. He can be reached at 866-582-2586 or james@jameswaitelaw.com.