Employers prodded towards vaccinations

By Moby Salahuddin

President Joe Biden invoked his regulatory powers in early September to require all private-sector employers with 100 or more employees to ensure their workers are fully vaccinated or required to produce a negative test result on at least a weekly basis before they can return to work.

The president’s decision, which also extends to federal employees and healthcare workers, will likely force numerous large employers to make vaccinations mandatory. Many of America’s most-prominent companies are among those not requiring vaccinations of all their workers – the list includes Walmart, McDonald’s, Bank of America, Delta Air Lines, CVS Health, Lowe’s, and Home Depot.

The Republican National Committee said it would file a lawsuit against the Biden administration and Republican governors of Arizona, Georgia, Indiana, Montana, South Carolina, Tennessee, and Texas vowed to fight the mandate.

Employers apprehensive they would lose workers if they mandate vaccinations can take solace from several reports showing only a fraction of employees carried through their threat to quit if forced to take the vaccinations. According to an analysis by the journal CommonWealth, of 17 large organizations where resignations or terminations occurred, the median turnover was 0.6 percent. 

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Among the most-common reasons cited for not taking the vaccine is the fear the COVID vaccines are new and were rushed into production. Scott Gottlieb, former head of the Food and Drug Administration and one of the nation’s foremost authorities on the vaccines, dismisses those concerns. “What I say is that this was a very long development process, actually, I mean, it felt quick in terms of the time but the clinical trials we did to actually evaluate these vaccines were the largest clinical trials conducted in modern times,” he remarks.

OSHA is developing a rule under its Emergency Temporary Standard (ETS) to enforce the president’s mandate. Fisher Phillips, a national labor and employment law firm, notes several unanswered questions: Will the mandate extend to employees working from home? Will OSHA require employers to collect proof of vaccination? What type of testing will be required? Who will pay for testing?

More vexingly, it is likely the ensuing rule will face legal challenges. “It is possible that a court could even block enforcement of the emergency rule until the legal challenges are resolved. OSHA will have to prove that there is a “grave danger” to the workers of large employees in order for the ETS to withstand a legal challenge, which may be a difficult task,” the law firm concludes.

Employers who are not large enough to fall under the president’s mandate but wish to make vaccinations mandatory should first consider whether they will allow unvaccinated workers to have the option of being tested weekly (as the president’s plan provides). As HBR reports in its recent issue, ideally, an employer would have clear and simple implementation policies about who is subject to the mandate; which vaccines are acceptable; what proof of vaccination is required; whether to require booster shots when different cohorts become eligible for them; criteria for granting exemptions, including whether to require employees to reapply for exemptions periodically; and standards for those granted vaccination exemptions.