As many U.S. workers head back to the office, at least part time, the Equal Employment Opportunity Commission (EEOC) is putting unvaccinated employees on notice.
The agency has determined that companies can mandate that workers get vaccinated against the coronavirus provided that accommodations are made for people who have a disability or “a sincerely held religious practice or belief” that precludes them from receiving a shot.
If a “reasonable accommodation” can’t be made, an employer may restrict an employee’s access to the workplace, according to the EEOC. While it doesn’t mean the employer can automatically terminate the worker, eventually that could happen.
For Dr. Jeff Levin-Scherz, managing director and co-leader of the North American health-management practice at advisory company Willis Towers Wilson in Boston, unvaccinated employees returning to the office may get a pass from employers for the time being.
“Most employers will not consider mandating workers get it until the vaccine is fully approved, as opposed to being used on an emergency-use authorization basis,” he said. “And it’s going to take a little while before that’s the case.”
The imperative to mandate vaccines will decrease as more and more people decide to get vaccinated on their own initiative, he adds.
Majority of Americans at least partially vaccinated
Indeed, government data shows that about 60 percent of the U.S. population has had at least one Covid-19 vaccine shot.
To be sure, there are some employers who are mandating vaccines for their workers.
Employees of New Jersey’s RWJBarnabas Health, Houston Methodist Hospital and the University of Pennsylvania health system must be vaccinated, along with workers in health-care facilities like nursing homes.
Delta Airlines announced earlier this month that it would require new employees to get a Covid-19 vaccine. In addition, more than 400 colleges and universities are mandating that students get the shot.
In a survey of 1,339 employers by Arizona State University’s College of Health Solutions and the World Economic Forum released in April, 88 percent of employers said they plan to require or encourage their employees to be vaccinated against Covid-19.
Fifty-nine percent of employers plan to incentivize their employees to be vaccinated, while 60 percent plan to require workers to demonstrate proof of vaccination, it found. Forty percent say they will require all employees to get inoculated.
Still, the case for employee vaccinations is complicated by lingering unease about the Covid-19 shot and vaccines overall. Given the tightening labor market, some organizations fear that vaccine-hesitant workers may quit if they push them too hard to get the shot.
To be sure, employees who have been working remotely because of the pandemic are increasingly confident they have leverage when it comes to employer mandates, regardless if they concern vaccines or giving up flexible work schedules.
For example, about a third of workers globally would consider quitting their jobs or retiring if given an ultimatum regarding an in-office return, according to a GitLab survey.
A New Mexico corrections officer filed a federal lawsuit challenging his employer’s right to compel employees to get vaccinated, arguing that he should not be forced to become “a human guinea pig.”
Importance of state and local legislation
Legislation at the state level also may hamper the ability of businesses to mandate vaccinations. About 20 states are considering banning the use of so-called vaccine passports. The administration of President Joe Biden also is reportedly against the idea.
“There’s a little bit of everything out there right now at the state and local level,” said attorney Maggie Spell, a New Orleans-based partner with Jones Walker who specializes in employment law. “And obviously, we don’t know what’s going to make it through [the legislatures]. Some of the southern states have [proposals] that would allow employees just to refuse the vaccine for any reason.”
Some businesses are taking a different approach and offering incentives to convince workers to get vaccinated instead of mandating them.
Companies such as Walmart, Target and Petco are offering employees cash stipends to get vaccinated. State governments are also getting in on the action. West Virginia recently announced that it would be offering a million-dollar grand prize, college scholarships and pick-up trucks. Maryland, Delaware and New York are running similar contests.
Other companies are taking a wait-and-see approach to vaccines.
Headaches may outweigh benefits
“Most of them seem to be waiting until the fall to give employees time to get vaccinated or make their decisions in that regard,” said employment attorney Mark Keenan, a partner with Barnes & Thornburg in Atlanta. “And I think they want to make sure that the numbers continue to decline as they have been for the last month or two.”
According to Levin-Scherz, the benefits gained from vaccine mandates would be negated by the headaches they would generate.
“One of the issues about mandates is that they would, from a public-health perspective, probably be the most valuable very early on, when there’s a lot of respiratory diseases around in the community,” said Levin-Scherz, who also is a professor at Harvard’s T.H. Chan School of Public Health.
“Potentially having employees be angry at you over it, it ends up not being able to reduce the risk all that much,” he added. “So that’s my belief that we won’t see widespread employer use of mandates.”