Can companies require employees to get vaccinated against Covid-19?
As the Covid-19 pandemic and the current Delta variant continues to devastate populations around the world, vaccine rollouts are offering some hope for an eventual return to normal. However, the speed of the rollout and confusing federal guidance on workplace vaccination policies have put employers in a difficult position.
Organizations are essentially on their own in terms of developing policies related to Covid-19 and deciding whether or not employees should be required to get vaccinated. There are a variety of factors to consider at this crucial crossroads to determine which path companies should take.
Employers playing a new role
Where do companies fit into the development of vaccine policy? With the U.S. federal government declining to provide clear plans of action to businesses on Covid-19 vaccines, small employers are often completely lost on strategy and large employers have been thrust into the position of policy leadership. There is clearly a duty of care for employers to protect their employees to some extent by considering Covid-19 a health and safety concern, but at what point do policies on vaccination become legally questionable?
Update, August 2021
Many of the U.S.'s leading employers recently announced Covid-19 vaccine requirements to return to the workplace for portions of their staff. Walmart, Disney, Netflix, Saks Fifth Avenue, BlackRock, Facebook, Twitter Goldman Sachs, Morgan Stanley, Delta Airlines, United Airlines, The Washington Post, Lyft, and Uber are some of the companies announcing vax mandates in the last week of July. In the public sector, the US federal government, the Veteran's Association, and the states of New York and California announced new requirements for parts of their workforces.
The legality of vaccination mandates
The biggest question business leaders tend to have about mandating vaccines for employees is whether or not such a mandate would even be legal. The answer depends largely on location.
In the United States, according to an article in the National Law Review, it is legal for employers to institute mandatory vaccination policies for Covid-19 — as long as employees have the option of seeking exemptions through the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 and the Genetic Information Nondiscrimination Act (GINA).
The Society for Human Resources Management (SHRM) has reported on guidance by federal and state anti-discrimination organizations for employers, and in July provided a 7-step process on developing a vaccination policy. The U.S. Equal Employment Opportunity Commission (EEOC) has also affirmed that employers generally can mandate Covid-19 vaccinations. "The EEOC specifically addressed vaccinations that are authorized or approved by the FDA," noted Anne-Marie Vercruysse Welch, an attorney with Clark Hill in Birmingham, Mich.
There is a grey area here because the vaccines available in the U.S. as of mid-April 2021 are approved under emergency use authorization (EUA), not full FDA BLA approval. STAT News, a prominent publication covering the biotech and medical fields, has published detailed explainers on why the EUA status prohibits employers from requiring Covid-19 vaccination – but that also there are few to no legal barriers to employers or schools that seek to mandate vaccination.
Most small-to-medium-sized businesses don't have the legal resources to develop an airtight vaccine mandate policy that properly accommodates the required exemptions.
The CDC is also taking the lead in producing resources and options for organizations to use as they encourage and incentivize workforces to get vaccinated.
In nearly every other part of the world, the public health ministries of each country are the only bodies that can mandate vaccines, and employers are heavily restricted from doing so. Most of Latin America, Europe and the United Kingdom operate in this fashion. Japan's Ministry of Health, Labor and Welfare has gone even further and explicitly prohibited mandatory vaccines altogether. As a result of these variations, companies that operate beyond the United States are facing pressure to develop policies in the U.S. while ensuring that non-U.S. employees are following the governmental guidelines specific to each country.
California recently became the first state to offer guidance on vaccine mandates, with guidelines based on the Fair Employment and Housing Act (FEHA). Under FEHA, employers can mandate vaccines that have been approved by the FDA provided that organizations are not discriminating against employees or applicants based on protected characteristics such as race, age or sex. The Department of Fair Employment and Housing (DFEH) has not made any statement suggesting that employers are encouraged to implement vaccine mandates and recommends that organizations should seek legal advice before changing any related policies.
Additional barriers to vaccine mandates
If companies are to push forward and mandate vaccinations, they may also need to contend with unions. Kim Cordova, vice president of the United Food and Commercial Workers International Union (UFCW) has stated in no uncertain terms that companies must negotiate their mandates with the union before implementing the policy.
On the other side of the aisle, Jay Timmons, CEO of the National Association of Manufacturers, has stated that the Association will back member companies that move to institute vaccine requirements.
When mandating makes sense
Business leaders must decide when the benefits of mandating vaccines – versus highly encouraging them – outweigh the associated risks and challenges. The industry space that you’re in is a significant factor, with companies that are mostly office-based being least likely to mandate. When workers are mostly interacting with colleagues and may even be working from home, there is not a strong health-based case to work through all the red tape necessary for a stringent vaccine policy.
Companies in the retail, healthcare, manufacturing, trades, hospitality and travel spaces, on the other hand, must consider that their employees who interact directly with colleagues and customers each day are at greater risk of contracting Covid-19 as well as greater risk of exposing others to the virus.
Air travel is a clear example of an industry where vaccination mandates make sense. Airline workers are considered essential, and they spend hours at a time in close quarters with travelers, making them a clear high-risk group. The CEO of United Airlines has taken a strong stance and stated that despite logistical challenges, he believes that "the right thing to do is for United Airlines, and for other companies, to require the vaccines and to make them mandatory."
Other options for vaccine policy
Vaccine policies don't have to include mandates. Tyson Foods, for example, has declined to implement a mandate. Because its workers are handling food production, however, there is risk associated with ignoring vaccines altogether. Rather than force employees to get vaccinated, Tyson has offered vaccines on-site at its facilities in multiple states and expects that many of its workers will take advantage of these pop-ups.
The average business without an in-house legal team is most likely to follow Tyson's example and take steps to encourage vaccination, rather than mandate it. They may not be able to set up on-site clinics, but they can do things like give employees paid time off to get the shot and provide resources such as lists of nearby vaccination sites.
Offering incentives may also be a smart way to encourage vaccination without making it a requirement. Health insurance provider Anthem has announced that all associates who are fully vaccinated against Covid-19 are eligible for a one-time medical premium credit, which they can accept or choose to donate to the Anthem Cares Fund to support other employees in need. Such incentives are a workable option for businesses of all sizes, as they can be tailored to the resources available.
Anticipating employee pushback
Although attitudes are changing rapidly, there is a significant portion of the population that will refuse to get the vaccine even if mandated by their employer.
- A January poll showed that 51% of adults definitely plan to receive the vaccine when available, while 14% said they probably would not and 10% said they definitely would not get vaccinated.
- In later research by the SHRM, 60% of workers indicated they would probably or definitely get a vaccine once available, but an eye-opening 28% of respondents said they would be willing to lose their jobs if their employer made the vaccine mandatory.
- A survey conducted by the COVID States Project in early summer reported that 64% of Americans said they would support federal, state or local governments requiring everyone to get vaccinated.
What recourse do employers have when an employee refuses to comply with a mandate?
In most cases, companies can terminate employees for refusing to follow health and safety rules. It's crucial to note that employee objections based in fear or distrust of the vaccine rather than reasons related to disability or religion do not have to be accommodated. In fact, in employment-at-will states, employers can fire workers for no reason at all. However, this can lead to reputational damage that most businesses would rather avoid.
When possible, companies can bar employees from the workplace until they get vaccinated — although this may not be an effective strategy for employees that can't work from home. Other types of accommodation include requiring the employee in question to wear a mask and practice social distancing while at work.
Large employers leading the charge
Companies like United Airlines, Tyson and Anthem are proving that employers have a significant role and responsibility in building vaccine policy for the road ahead. As they and other large employers roll out policies and gauge their viability, they provide a blueprint for smaller businesses to follow when attempting to create legal and ethical health and safety guidelines related to Covid-19.
Finding the right vaccination policy management approach
For employers of any organizational size, developing and implementing vaccination-related company policies will become a new priority as businesses move into the new normal of the Covid economy and more employees start to return to offices and work environments. Vax Essentials is a focused set of SAI360 software modules that enable compliance and risk managers to holistically manage policies and risks related to Covid-19 vaccinations in the workplace. Learn about our program.
Webinar with GRC expert Michael Rasmussen
SAI360 hosted a live webinar on managing vaccination policies, detailing 6 policies that organizations should revisit, featuring Michael Rasmussen, an expert on governance, risk and compliance (GRC) best practices. He discussed industry trends in employee vaccination compliance policies with SAI360's EVP Paul Johns in an open Q&A format webinar.
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