Pfizer’s massive rollout of its COVID-19 vaccine began in early December, with Moderna’s not far behind it. Many see the fact that a vaccine is available less than a year into a global pandemic as a modern miracle. CNBC reports that the vaccine could be available to the general public at CVS and Walgreens stores as early as this spring. With widespread vaccination, there is hope that the world can return to something that resembles normal, including returning to the office. Hope notwithstanding, controversy surrounds the vaccine in some quarters, and people may choose not to get vaccinated for a variety of reasons. This raises the question: Can employers require employees to be vaccinated against COVID-19 as a condition of employment?
According to the Equal Employment Opportunity Commission, indeed they can. The EEOC created a web page, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, which addressed employer-mandated vaccination. This Q & A page outlines what employers need to know about requiring vaccines and what reasonable exceptions they must make if they do decide to put a vaccine mandate in place for employees. Employers can lawfully require employees to be vaccinated or show proof of vaccination, so long as employers makes reasonable accommodations for employees who cannot take the vaccine because of a medical condition, or who choose not to be vaccinated because of a sincerely held religious belief. What is a “reasonable accommodation” is of course dependent upon the nature of the employer’s business and the employee’s duties. It might be a reasonable accommodation to allow an airline reservations’ agent to work from home, but not an airline pilot (although Elon Musk may be working on that). If employers find it is impossible to make reasonable accommodations, then they need to determine whether employees have any other rights under EEO laws, applicable state law, employment agreements, or union contracts, to cite a few sources.
Why a Vaccine Mandate?
With each surge in COVID-19 cases, communities face overwhelmed hospitals and many other troublesome public health issues. The virus is easily spread in the workplace, although infection rates vary among business types and their person-to-person contact. According to the Society for Human Resource Management, healthcare, travel, retail, and other industries that require employees have direct contact with vulnerable populations have a strong case for requiring employee vaccinations.
Vaccinations will protect the health of employees and the community, and will help achieve desired herd immunity. Because COVID-19 is a new disease, we cannot yet estimate the percentage of the US population that needs to be immune (by infection and recovery or by vaccination) to achieve herd immunity. Estimates are as little as 70%, according to sources surveyed by the Mayo Clinic. By way of comparison, for older, well-studied diseases, the World Health Organization reports that heard immunity for measles is achieved at 95%, and for polio at 80%.
Employer-required employee vaccination against COVID would also reduce the workplace costs of absences, lost productivity, and healthcare expenses.
Employer-required vaccination could also reduce the employer’s legal liability, because unvaccinated employees who contract and spread COVID-19, could give employees grounds to accuse the employer of failing to provide safe work environment, according to SHRM. However, we do not yet know if a vaccinated person can still spread the virus. Law firm Gibson, Dunn & Crutcher created an Employer Playbook for the COVID Vaccine Wars that points out that, should the Occupational Safety & Health Administration (OSHA) begin to include workplace vaccination as a required part of the employer’s “general duty” to provide “a workplace free from recognized hazards that could cause serious harm,” employers could face regulatory risks.
Why Make Vaccination Optional in the Workplace?
Mandates are controversial. Gibson Dunn points out that any mandate would have to be carefully framed and its purpose explained; even then, it could become a source of friction among employees. In an Engine survey, 77% of Americans said they would eventually get the vaccine, but half plan to wait for more information before doing so. Although Engine did not specifically ask those surveyed why they would not immediately get the vaccine, Engine speculates that pauses in vaccine trials, political news, and science debates play a role in vaccine skepticism.
Mandating COVID-19 vaccination could reduce employee morale and create tension, and some employees could choose to quit rather than get the vaccine, causing business disruptions. According to a Johns Hopkins University article about vaccine mandates, people will be more inclined to get onboard with vaccination if they are not forced into it. Bottom line, the goal is to get as many people to get vaccinated as possible, but people do want to feel they have a choice.
Other reasons to avoid a vaccine mandate are administrative ease and decreasing discrimination liability. With an employer mandate, human resources staff could become overwhelmed processing exemptions for medical and religious reasons if a large number of employees object to taking the vaccine. Employment law firm Ogletree Deakins advises creating a plan for handling exemptions in advance of implementing a mandatory vaccine program. Those denied an exemption could choose to pursue legal claims of discrimination under the ADA.
How Will Employers Proceed?
Many large US employers say they will encourage but not require employees to get the COVID-19 vaccine. According to the Wall Street Journal, Facebook CEO Mark Zuckerberg said in a virtual staff meeting in December that he does not plan to mandate employee vaccinations before employees return to Facebook’s office. He did say he plans to get vaccinated.
Some employers may encourage vaccination by offering incentives, although stopping short of mandating it. Incentives could come in the form of 401K contributions (although that would raise qualification and discrimination issues) or cash as part of the company wellness plan. Others could encourage vaccination by offering their facilities as vaccine administration sites or bar unvaccinated employees from certain activities. Emerson Electric recently decided that a mandate did not fit the company culture, so they plan to reward employees who do receive the vaccine and limit the activities of those who do not. Dollar General just announced it will offer employees four hours of pay for getting the vaccine.
A robust education program is another approach. While vaccines for measles, mumps, and influenza have been around a long time, the COVID-19 vaccines are new, and some people will have concerns about their safety. Healthcare providers can be helpful in providing vaccine education.
Whether companies decide to mandate employee vaccinations or let them be optional, most are waiting for further government guidance and weighing the considerations of their industries and potential employee response. Employers want their employees to feel safe coming back to work while preventing the virus from spreading in the workplace and in the community. It will require careful decision making to both achieve vaccination goals and employee buy-in.