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Contributed Photo / A FedEx Express plane sits at the FedEx Express World Hub in Memphis. The company, with 425,000 employees, is the state's largest.

President Joe Biden said Thursday the federal government should determine who should have COVID-19 vaccines. And he plans to use the unprecedented idea of forcing employees at the country's largest private businesses to take them (or be tested every week) to make sure of it.

The mandate, expected to be enforced by a yet-to-be-written emergency temporary standard developed by the Department of Labor's Occupational Safety and Health Administration (OSHA), would affect private businesses in Tennessee from the 425,000 employees at Memphis-based FedEx, the state's largest employer, to the 105 employees at Chattanooga-based Top Flight.

Biden laid out the plan along with a number of other COVID-19 mandates as the delta variant of the virus rages largely among the unvaccinated, but also increasingly among the vaccinated.

We think the mandate about private businesses with 100 or more employees is probably unconstitutional, and several organizations already have stepped up and said they would challenge it in court. But if the federal government is able to take this giant step into private business, there may be no stopping what it might attempt to do in the future.

The Tennessee Chamber of Commerce, for one, thinks it's a bad idea.

"President Biden's recent actions establishing significant vaccination verification and testing mandates for employers is not the right solution," the organization said in a statement. "In fact, over 76% of businesses, in a recent survey by the Tennessee Chamber, opposed the federal government dictating vaccination protocols to businesses.

"This type of sweeping government mandate enforced through significant occupational safety requirements challenges our economic competitiveness and is not the right thing to impose on private businesses at this time.

Bradley Jackson, president and chief executive officer of the state chamber, told this page Friday employers "want to be given the freedom to require" vaccines for their employees but don't want to be told they have to. He said Biden's plans are an administrative nightmare and the "issue of testing" puts "employers in a terrible position" and sets them up as the "enforcement agent."

On Friday morning, Ben Shapiro of The Daily Wire, a Nashville-based conservative media company with 140 employees, said on the Fox News "Fox & Friends" show that his company would not comply with the mandate.

"We're going to use every method and resource at our disposal to defy the president's unconstitutional order," he said.

The Chattanooga Area Chamber of Commerce, in an online 2021 list it says is self-reported by individual companies and does not represent a complete inventory, shows 91 employers with anywhere from 105 employees (Top Flight) to the Hamilton County Schools with 4,980 employees. Not all listed employers are private businesses, though.

The organization also says, according to a U.S. Census Bureau list of County Business Patterns, there are 289 businesses in Hamilton County with 100 or more employees and 349 in the Chattanooga Metropolitan Statistical Area.

A local chamber representative did not return an email seeking a response to Biden's private business directive.

On the same day Biden rolled out his plan, HCA, one of the largest for-profit health systems in the country with more than 275,000 employees and 187 hospitals, said it would not mandate vaccines for its employees.

Meanwhile, research from the Society for Human Resource Management found that 28% of employed Americans say they won't get the vaccine even if it costs them their job.

Business experts told the organization Biden's decision would be welcome for private employers who have wanted to require vaccines but also would give them several other things to ponder. Among those, they said, are the use of premium differentials in their health plans to penalize employees who don't get the vaccine and the necessary offer of exemptions for employees with qualified disabilities or sincerely held religions beliefs.

"This is the first vaccine mandate ever applicable to private employers," Kathryn Bakich, health compliance practice leader and senior vice president at employee benefits consulting firm Segal in Washington, D.C., said.

The president's directive about private businesses is expected to affect around 80 million workers. The directive also requires employers to give workers paid time off to get vaccinated or recover from any side effects of getting vaccinated, and warns that employers who don't comply with the requirements could face fines of up to $14,000 per violation.

We have made it clear that we believe vaccines are safe and effective and in most cases will prevent serious illness and death from the COVID-19 virus. We also believe private employers are in the right — lawfully so — to require vaccines for their employees. They have every right to protect their investment, and if they believe vaccines best protect that investment, so be it.

But the federal government mandating that employees at private businesses be vaccinated is, to us, a slippery slope. The issue, we're certain, will wind up in court, and we'll be eager to see if private employers will be allowed to make their own decisions or if some of their decisions now will be at the behest of the government.

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