Biden's vaccine mandate puts businesses in legal and operational crossfire

President Biden announced in September 2021 that all federal employees must be vaccinated against COVID-19, a directive affecting more than 100 million workers nationwide. Beyond the federal workforce, he instructed the Department of Labor to craft a rule requiring private businesses with more than 100 employees to mandate vaccination or implement weekly testing for unvaccinated staff. The policy was designed to increase vaccination rates across American workplaces and reduce disease transmission, with Biden citing major corporations—United Airlines, Disney, Tyson Foods, and Fox News—that had already adopted similar requirements.

The mandate's reach, however, was narrower than it first appeared. Across the nation, roughly 53 percent of the workforce is employed by businesses with fewer than 100 workers, and South Carolina's employment landscape mirrors this pattern. In Charleston County alone, approximately 1,500 employers exceed the 100-employee threshold, while more than 70,300 businesses operate with fewer than 50 workers. Frank Knapp, representing the South Carolina Small Business Chamber of Commerce, noted that most small businesses—defined by his organization as those under 100 employees—would escape the requirement entirely, though the federal government classifies small businesses as those under 500 employees.

The real pressure fell on mid-sized enterprises caught between the federal mandate and state opposition. The Charleston Hospitality Group, operating five or six restaurants across the Lowcountry with 400 to 500 employees, found itself in precisely this bind. Chief Marketing Officer J. Michael Walker explained the operational complexity: enforcing such a policy required substantial administrative resources, and the Department of Labor's final rule had not yet been released. "You have to have a lot of manpower to enforce this type of law," Walker said. "It's fine to come out with a mandate until you get to the nitty gritty of the law that comes from the Department of Labor." The company was weighing options but needed far more clarity before committing to a vaccination requirement.

South Carolina's political leadership made its position unmistakable. Governor Henry McMaster declared on social media that the federal government had "declared war against capitalism, thumbed their noses at the Constitution, and empowered our enemies abroad," vowing to "fight them to the gates of hell to protect the liberty and livelihood of every South Carolinian." This rhetorical escalation left businesses navigating a genuine legal and operational maze. Walker articulated the core dilemma: "The biggest issue we have now is who do you follow." He pointed to the confusion already created by conflicting local and state mandates, as well as school system policies. The uncertainty extended to enforcement—which agency would ultimately determine whether a business remained open or faced closure?

The Charleston Hospitality Group was not yet ready to mandate vaccinations, though Walker noted that most of their workforce was already vaccinated. Management met to explore alternatives, including whether they could implement testing programs themselves or require employees to arrange their own testing. Meanwhile, legal challenges appeared inevitable. Amy Gaffney, a business lawyer at the Gaffney Lewis law firm, anticipated litigation. She noted that employees could seek exemptions on religious or medical grounds, but South Carolina's right-to-work status offered little additional protection. "I do see cause for litigation where this rule is challenged," Gaffney said, pointing to questions about whether the mandate violated employee freedoms and constitutional rights.

Yet the federal government possessed legal standing for such mandates. OSHA, the Occupational Safety and Health Administration, held authority to issue Emergency Temporary Standards—regulations that could be enacted when grave danger to worker safety existed. Gaffney cautioned that regardless of the mandate's final form, it would impose substantial burdens on businesses. Beyond tracking vaccination status, employers would be required to provide paid time off for employees to receive vaccines. One significant unresolved question concerned remote workers: with so many employees working from home or in hybrid arrangements, it remained unclear whether the mandate would apply to them at all.

Some of the Charleston area's largest employers had already moved ahead. Joint Base Charleston, the cities of North Charleston and Charleston, Charleston County government, the Medical University of South Carolina, and Roper St. Francis Healthcare had all implemented vaccine mandates. Others—including the Charleston County School District, Berkeley County School District, Dorchester District Two, Boeing, Trident Health, Walmart, and the U.S. Postal Service—had not yet done so as of mid-September. The patchwork of requirements, combined with the state's fierce opposition and the federal government's unfinished regulatory work, left businesses in a holding pattern, waiting to see which authority would enforce what, and when.