Should Employers Encourage or Mandate Vaccination?

With 46% of Americans fully vaccinated against COVID-19 as of June 2021, formal guidance around vaccinations and the workplace lag behind everyone’s eagerness for a “return to normal.” Whether employers can (and, more importantly, should) require vaccinations for in-person workers brings up a tangle of ethical and legal issues, and rules vary from state to state. Options for employers and H.R. professionals range from mandating the vaccine as a condition of returning to the workplace to providing incentives for vaccinated employees to relying on the honor system or leaving the decision to the individual. Another part of the tangle is the partisan/political polarization about vaccinations. Where should individual “liberties” end and government-imposed actions start? Is it medically and ethnically okay for one not to be vaccinated but to take advantage of the herd immunity created by mass vaccination, even if it means remaining vulnerable to disease and taxing our already overtaxed healthcare system? Is it fair to reflect on previous, horrific misuse of human experimentation as a motive to avoid vaccination? Must some perceive every public health recommendation as an authoritarian conspiracy to trample our freedom further?

To cut to the chase, most public health experts recommend that employers take an employee-focused approach that maximizes safety and encourages a culture of transparency and respect. But first, let’s break down some of the legal, ethical, and cultural factors employers should consider when deciding whether to mandate vaccines and require proof of vaccination.

A Legal Gray Area
According to Reuters, the U.S. workplace safety regulator, the Occupational Safety and Health Administration, OSHA, has not provided clear guidance on vaccination. However, the Equal Employment Opportunity Commission (EEOC) recently released guidance saying employers can require all workers entering a workplace to be vaccinated against COVID-19, though the commission cautions that reasonable accommodations can be made for employees who are unvaccinated due to a disability or religious belief.

On the other hand, many state lawmakers are introducing legislation that makes it harder for employers to require vaccines or terminate workers who refuse to get inoculated. Over 85 such bills have been submitted. Already, several lawsuits have been brought against employers for mandating vaccines. The central argument in these suits is that the vaccines are allegedly “experimental” because they only have emergency FDA authorization and, therefore, they cannot be mandated. Thus far, judges have tended to side with employers in these cases, citing public health needs and noting that the vaccines, while technically under the emergency authorization, were rigorously tested for safety before being made available to the public.

The emergency authorization question is one reason some experts advise against vaccine mandates before the FDA fully licenses the COVID vaccines, which could happen as soon as later this summer.

Incentives, the ADA, and Confidentiality Issues
According to a survey by Willis Towers Watson, 72% of U.S. employers do not plan to require vaccination before reentering the workplace. Many companies instead rely on incentives such as cash stipends, tax credits, and paid time off to get the vaccine and recuperate from any side effects—however, the EEOC. Recently released more detailed guidance around how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply when an employer offers incentives to employees to get a COVID-19 vaccine. The guidance states that employers may offer an incentive for employees who voluntarily receive the vaccine but that the reward may not be “substantial enough to be coercive.”

The lack of detail about what qualifies as “coercive” may be another deterrent to considering mandating vaccination. Additionally, the ADA requires employers to provide reasonable accommodations that allow employees with disabilities to participate equally in wellness initiatives, including eligibility for incentives.

Regarding hiring, the EEOC clarifies that asking current and potential employees whether they have received the COVID-19 vaccine is not a disability-related inquiry. However, follow-up questions (such as asking why a potential employee has not been vaccinated) could be seen as discrimination based on disability or religious preference, which opens the employer up to legal risk. Furthermore, employers should have protocols to ensure information about vaccination status is kept confidential.

Considerations for Employers
As mentioned, the COVID-19 vaccine has become deeply politicized. While some reasons behind vaccine hesitancy result from conspiracy theories and political maneuvering, others are valid. For example, many Black Americans distrust the vaccine because of generations of discriminatory care and medical abuses against people of color. As of June 14, 2021, the CDC reported that race/ethnicity was known for 57% of people receiving at least one vaccine dose. Among this group, nearly two-thirds were White (61%), and only 9% were Black.

Many nationwide efforts are being made to reach out to Black and other marginalized communities to encourage vaccination. However, vaccine mandates risk alienating employees of color still weighing their options. Employers will also need to consider making an exception for pregnant employees. The Centers for Disease Control and Prevention (CDC) stated that although pregnant women are at increased risk for severe illness from COVID-19, it does not have sufficient data to ascertain whether COVID-19 vaccines are safe for pregnant individuals. Thus, the employer might be liable under the Pregnancy Discrimination Act if an employer refuses to excuse a pregnant employee from a vaccination requirement.

Vaccination rates and the number of COVID-19 cases vary from state to state. The employer’s location(s) and industry may be essential factors in whether a vaccine requirement is worth the potential legal risk and impact on employee morale. According to the New York Times, “As coronavirus variants spread and restrictions are eased, experts fear that the virus could eventually surge again in [Southern] states like Alabama, Louisiana, and Mississippi, where fewer than half of adults have started the vaccination process.” In industries such as healthcare and education, where direct contact with others is inevitable, vaccine mandates may make more sense than in an office or call center with fewer employees.

The Bottom Line
According to the National Law Review, “The safest course of action is to strongly encourage employees to get vaccinated or to give them an incentive in the form of some extra personal time off to cover the time associated with getting and recovering from any side effects from the vaccine.” According to McKinsey, providing paid time off is the most effective action an employer can take to incentivize vaccination. Other steps to encourage employees to vaccinate include having your leaders share their reasons for vaccinating, providing credible information about the vaccines, and engaging the community or religious leaders in your efforts.

Ultimately, employers and H.R. professionals must continue to refine and adapt their vaccine policies as more Americans are vaccinated, legal guidance evolves, and employees return to in-person work. While an empathetic approach to employees’ freedom is likely best, there are no one-size-fits-all scenarios, and the health and safety of all employees should remain a top priority.