Between a rock and a hard place

South Florida companies weigh vaccine mandates

A pledge by Gov. Ron DeSantis to punish Florida businesses that require COVID vaccines for employees has plunged the corporate world into a no man’s land between the state and federal government.

“The first thing that came to mind when I saw the announcement is that it’s going to put a lot of Florida businesses between a rock and a hard place,” said Holly Goodman, a labor and employment attorney at the Gunster law firm in West Palm Beach.

For months, South Florida businesses have navigated a narrow path as they sought to steer employees toward getting the jab, while respecting worker religious rights and medical concerns. But of late, many employers have been firing workers who don’t comply, or imposing other penalties.

Then, in September, the Biden administration ordered a vaccine mandate for businesses employing more than 100 people, an action affecting an estimated 80 million workers nationwide. Specific rules — now being drafted by the Occupational Safety and Health Administration — are pending.

But on Thursday, DeSantis, who has railed for months against vaccine mandates of any kind, checked in with his call for a special legislative session next month to halt a growing private sector move toward mandatory inoculations for workers.

How are businesses reacting to the dueling directions from Tallahassee and Washington?

For some big employers, it depends on the actions they’ve taken thus far. Those who have been less than proactive are still taking a wait-and-see approach, analysts say.

Here is what some are thinking.

The HR consulting firm

Jay Starkman, president and CEO, of Engage PEO, a Fort Lauderdale-based human resources consulting firm, suggested that businesses fall into three categories on mandates:

■ We’ll never do a mandate unless compelled to do so.

■ I’m going to do it.

■ I’m not sure.

While Starkman’s company would prefer to require all 200 employees to get vaccinated, ordering up a mandate is a tough call to make.

To date, the company has fallen into the category of those that have strongly encouraged vaccinations.

“We have done everything we can to encourage everybody to get vaccinated,” Starkman said. “We took a company trip and only those that were vaccinated were allowed to attend. We have provided benefits — financial and otherwise— to people who have gotten vaccinated. But we do not have a vaccine mandate at this time.”

That was before DeSantis made his announcement.

“I’ve got the feds saying one thing, I’ve got the state saying another thing,” he said after the governor spoke Thursday. “I don’t know which way is up.”

The high-rise luxury condo

Some employers, after consulting with their lawyers, feel they are on safe ground by mandating vaccines for on-site employees and outside contractors.

The Continuum on South Beach is a twin-tower high rise resort in Miami Beach on South Beach that employs 200 people and appears

to have led the way among Florida condo associations requiring vaccines for employees and contractors.

“The actual policy decision was approved by the board of directors,” said Rishi Idnani, president of president of Marquis Association Management, which manages 70 condo properties including the Continuum.

The main goal, he said, was to take a “universal approach to keeping our employees safe.”

Idnani said the vaccine policy started two weeks ago and employees have until Nov. 15 to obtain their shots. If someone has gotten their first shot “and Nov. 10, we will work with them.”

“Obviously, we don’t want to lose any valuable employees,” he said.

The association is concerned about the expansive nature of the property’s amenities where lots of people come into frequent contact with one other. That includes a valet service, gyms, a spa, tennis courts and swimming pools. “We have an immense population” of residents, he said, including international travelers and vendors who visit the place.

Asked about the state’s threats to penalize employers who mandate vaccines, he said, “Our counsel shared with the HOA board that it is within its jurisdictions and authority to pursue this.”

“We’re dealing with our legal representatives,” he added. “As of right now we feel comfortable we’re being guided the right way.”

Federal contractors

In his attacks against the forthcoming Biden mandate for large private businesses, DeSantis has also taken aim at a U.S. Government mandate for federal contractors such as airlines and health care businesses.

He pledged a series of “aggressive legal challenges” against those mandates.

But a variety of companies that

count themselves as federal contractors are quickly siding with the feds and aren’t waiting for the “emergency temporary standards” to be handed down from OSHA. It’s easy

to understand why: it’s a multimillion-dollar decision.

“There are a lot of businesses in Florida where there is not a lot of choice,” said Goodman, the Gunster labor and employment attorney.

Health care-related companies including insurers and home care companies and private agencies that are paid with federal Medicare and Medicaid dollars probably “won’t put their contracts at risk,” Goodman said.

Florida Blue CEO Pat Geraghty said his insurance company is considered a federal contractor and will follow the U.S. Government’s vaccine mandate that requires all employees to be vaccinated by Jan. 1 or get a medical or religious exemption.

So far, 100 of its nearly 14,000 employees have asked for a religious exemption. By law, Florida Blue has

the right to question those exemptions and seek more information.

Airlines that fly everything from mail and cargo to troops and war refugees under government contracts are also quickly falling into line. So are companies in the shipping industry that have contracts with the U.S. Department of Transportation.

Locally, Miramar-based Spirit Airlines, which employs 8,600 people in the U.S., Caribbean and Latin America, said it “will comply with President Biden’s mandate.”

“The company is going through the process of understanding how the mandate applies to Spirit and will be communicating changes in health and safety policies to team members soon,” said spokesman Field Sutton.

Other airlines have been more direct. Alaska, American, JetBlue, Southwest and United all say they will follow President Biden’s executive order. All but United told employees they must be vaccinated

to comply with federal contractor rules by Dec. 8.

But Delta is using economic leverage to persuade staffers, charging unvaccinated workers a $200-a-month surcharge on their health insurance. The airline is self-insured.

Miami-based Ryder System, the transportation logistics firm, said it will wait for the rules from Washington before changing its policy of “encouraging” workers to get a shot.

“Like many employers, Ryder is awaiting further clarity and details of the proposed rules from the U.S. Department of Labor and its Occupational Safety and Health Administration,” Frank Lopez, executive vice president and chief human resources officer, said in a statement. “Since we are still reviewing how this may impact our employees, it’s a bit too premature to comment on anything specific at time.

He added that since the vaccines first became available, it has been Ryder’s intention “not to require employees be vaccinated.”

“However, we strongly encourage every employee who can get the COVID-19 vaccine to do so,” he said. “Ryder continues to offer employees up to three hours of paid time off for

each dose required.”

What companies should do now

Several legal experts contacted by the South Florida Sun Sentinel said it’s best to pay close attention to the orders and proposed statutes that actually end up becoming the law of the land.

“Right now we need to be carefully distinguishing between public announcements and actual law,” said Roger Feicht, a labor and employment attorney who is also at Gunster. “We are still waiting for these laws to be passed. There isn’t any statute in Florida that prohibits vaccines for employees.”

As for the governor’s vow to challenge the federal mandates in court, Feicht said, “there is an inherent risk assuming legal challenges will be successful.”

“The smart approach is to comply with the law,” he said.