Employers can mandate vaccine

The U.S. Equal Employment Opportunity Commission says in its recent guidance employers can require workers to get a COVID-19 vaccine. Employers can also ask workers if they have COVID-19 symptoms and whether they have been tested, and employees who refuse to answer may be barred from the workplace.

Such considerations have become important in the wake of reports a large number of Americans are reluctant to take a vaccine. In a survey conducted between January 6-18, the U.S. Census Bureau found 25% of unvaccinated adults will probably not, or will definitely not, take a COVID-19 vaccine when it becomes available. The bureau will continue to gauge sentiment and plans to release findings every two weeks.

Other polls have reported similar conclusions. In a January 2020 poll conducted by the Kaiser Family Foundation, 41% said they will “definitely” get a vaccine, 31% said they will wait and see, another 13% said they will definitely not take it, and 7% said they would take the vaccine only if it is mandatory (6% said they had already received the vaccine).

Some are hesitant because although vaccines are safe and effective, they are neither perfectly safe nor perfectly effective. Additionally, some people are unable to take a vaccine because of health considerations, and a number object on religious or philosophic grounds. Many employers are therefore reluctant to make vaccines mandatory. Several large companies – including Facebook and Marriott – have said they will rely on persuasion and incentives to encourage workers to get vaccinated.

The Washington Post reports Dollar General, Trader Joe’s, Aldi, and Lidl, as well as Instacart, have announced plans to promote the vaccine among employees, including flexible work schedules, paid time off to take the vaccine, and bonuses of up to $200. The newspaper adds the restaurant industry may also be moving toward incentives. Darden Restaurants, which employs more than 175,000 workers in Olive Garden, LongHorn Steakhouse, and other brands, has said it would offer workers up to four hours of paid time to get the vaccine.

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“Vaccine hesitancy” concerns public health officials because studies indicate 70% - 80% of the population must develop immunity to control the spread of the virus. Some observers say there are compelling reasons to make vaccines mandatory. COVID-19 vaccines remain the best way to reduce illness and deaths, and an effective way to reduce employee absences and lost productivity. For some businesses – restaurants, hotels, sports teams - even one positive test can halt operations. A monograph from the international law firm of Gibson Dunn notes as vaccines become freely available, employers may come under pressure from OSHA, and perhaps from private litigants, to ensure a safe environment through a robust vaccination program.

Employers who decide to make vaccinations mandatory must contend with several considerations. Is it worth it to provoke a backlash from workers? How would exemptions be granted for medical or religious reasons? “Despite signaling that an employer may require COVID-19 vaccinations of its employees, the EEOC’s guidance does not give employers carte blanche to vaccinate their employees,” notes employment-lawyer Benjamin Widener in an analysis in National Law Review.

He adds employers who choose to require vaccinations must: (i) exercise due care in administering it; (ii) refrain from asking any unnecessary screening questions; (iii) keep confidential any medical information received from employees; and (iv) be prepared to engage in an interactive process with any employees who request accommodation or seek exemption from being vaccinated for health-related or religious reasons.

“Given the foregoing, employers should think twice before requiring employee vaccinations,” he concludes.

The contentious nature of this issue is illustrated by the very different perspective offered by Johnny Taylor, Jr., president of the Society for Human Resource Management. In an interview with NPR on December 24, 2020, he said “what we’re hearing from smaller company entrepreneurs is, sure, the big companies can take one or two people getting sick or 10 or 12 people getting sick. But if I’m a 25-person employer and three of my employees get sick and, God forbid, get the rest of them sick, I’m out of business.”

He added “small and medium-sized companies, I fully predict, are going to over-index in requiring a mandate. I did an interview the other day with a small company owner, and she said the second a vaccine is available, any employee who does not take it will not work here, full stop.”

After a slow start, the U.S. is making rapid progress towards widespread vaccinations and the supply will receive a boost with the expected approval of a one-shot vaccine from Johnson & Johnson. The Biden administration is eyeing a goal of vaccinating 1.5 million Americans a day. As of February 1, nearly 26.5 million Americans had received at least one dose. In North Carolina, about 7.8% of the population has received one dose and 1.5% have completed vaccination.

Although new cases and deaths have been declining in the U.S. for the past three weeks or so, public health officials are urging rapid vaccinations because of apprehensions newer strains of the virus may be more contagious and may erode hardfought gains.