Vaccine orders: Montana businesses are in an untenable position

Last week, President Biden announced the Labor Department’s Occupational Safety and Health Administration in the coming weeks will issue an “emergency temporary standard” that will mandate all employers with 100 or more employees to require their workers be vaccinated or undergo weekly Covid testing. This rule is estimated to impact 80 million private-sector workers, with businesses facing fines of up to $14,000 per violation.

Meantime, Montana now has a law in the books that prevents employers from requiring their employees to get the vaccine, or to use differing safety measures for vaccinated and unvaccinated employees. Violators will be subject to sanctions by the Montana Human Rights Bureau. HB702 passed the Montana Legislature at a time when most thought that the Covid situation was ending. The delta variant has changed the calculus, and businesses are once again evaluating what they can do to guarantee a safe workplace for their employees and customers.

Until we learn more about how the new federal directive interacts with the state law, it appears that employers with more than 100 employees in Montana may have no choice but to require all their workers to report weekly test results. How will this be administered? Who will bear the cost? How will it be enforced? Is our state’s testing infrastructure prepared to take this on? Confusion, and the time and money that comes with trying to sort it out, does not bode well for our business climate. At minimum, the Montana business community needs additional clarification in order to comply with both the federal and state directives.

Montana is now in a unique and unenviable position. The Montana Chamber of Commerce has concluded the conflicting federal and state mandates both reflect excessive government intrusion into business and interference with private property rights of business owners. Businesses should have the right to make the best decisions for their business, just as individuals do when it comes to their personal health care choices. There will be free-market consequences in these business decisions, such as losing employees who disagree with their employer’s stance – but that’s capitalism at work. We like capitalism, a lot!

Lest we forget that finding and retaining workers is already challenging for all industries. As the state’s premier advocate for business, the Montana Chamber is concerned about how these dueling mandates could negatively impact workforce development.

Given the health risks associated with Covid and employers being left without clear direction, we can’t rule out the possibility that a meaningful number of current employees nearing retirement age will decide to leave the workforce early. Nor can we overlook the fact that demand for labor is outstripping supply, which could lead to many workers choosing to leave larger employers for smaller employers to evade the mandate on philosophical grounds.

Of course, there’s also the significant loss of productivity by having employees spend time testing and administering the mandate as opposed to actually working at a time when companies are already critically understaffed.

We cannot allow business rights to be compromised – employers know their business best and will make informed decisions on their own to maintain a healthy workforce and workplace culture if they hope to navigate these challenging times.

Todd O’Hair is President and CEO of the Montana Chamber of Commerce.