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Most Employers Unlikely to Mandate COVID-19 Vaccination

As the COVID-19 vaccination rollout continues across the United States, a topic of conversation among employers and their legal teams is whether they should require their employees to be vaccinated.

There are, of course, levels to this debate, because not all employers are the same and not all workers are the same. An employee at a restaurant or retail store incurs greater exposure than, perhaps, an accountant who is able to work from home five days a week.

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Some employers, such as Target, Dollar General, Kroger and McDonald’s, have announced that they will provide their workers with financial incentives to get vaccinated. Other organizations are thinking through similar strategies.

However, according to a survey by Littler Mendelson P.C., most organizations have no plans to mandate COVID-19 vaccination. The “COVID-19 Vaccine Employer Survey Report” completed by more than 1,800 in-house lawyers, human resources professionals and C-suite executives across the U.S. found that less than 1% of respondents currently mandate vaccination for all employees and just 6% said they plan to once vaccines are readily available and/or the U.S. Food and Drug Administration grants full approval.  

Nearly half (48%) have already decided against requiring immunizations in their workplaces. It remains feasible that vaccine mandates will become more common in the coming months, as 43% of employers said they were still considering the possibility of such a policy, there are various concerns that make it unlikely.  

Top concerns around a mandate are fundamentally linked to employee relations issues: 79% cited resistance from employees who are not in a protected category but refuse or oppose vaccination generally, while 67% are concerned about a mandate’s effect on employee morale and company culture. Legal and administrative concerns added to the hesitancy, as 64% are worried about legal liability should an employee experience an adverse reaction, and 47% about administrative difficulties with implementing mandates.  

“Given the wide range of legal and practical considerations employers must balance in establishing COVID-19 vaccination policies, it’s not surprising that most are currently planning to encourage, rather than mandate, immunization,” said Barry Hartstein, leader of Littler’s COVID-19 Vaccination Working Group. “It’s also a telling sign of the unprecedented environment we’re operating in that employers’ top two concerns with requiring vaccination are not legal or liability issues, but rather focus on the personal perspective of employees grappling with an ongoing global crisis and the potential impact on company culture.”

Encouraging Vaccination

Despite the hesitancy around mandating vaccinations, the survey suggests employers are focused on encouraging employees to get the vaccine, as only 6% have no such plans. Nearly 90% of respondents said they would provide information to employees (such as the benefits of vaccination and how to get vaccinated) and 37% said they would offer vaccine administration at their own facility to increase convenience.

Employers highlighted other avenues of encouragement, such as offering paid time off to receive the vaccine or recover from its side effects (33%) and providing incentives to employees, such as cash awards or other monetary benefits (11%).

The latter option in particular is one many employers are likely considering, but the low percentage of those currently planning to offer such incentives likely reflects the complicated issues involved in administering such a policy — including employee benefits and wage and hour issues.

Remote Work Policies and Return-to-Work Considerations

For employers that elect not to mandate vaccinations — and even for those that do — there will inevitably become a split in the workforce among those who have and have not been vaccinated. The survey found that 72% of respondents expressed at least some concern about providing reasonable accommodations to those who cannot or who refuse to get vaccinated. 

This concern may explain why most respondents appear to be decoupling remote work policies from vaccinations. In reflecting on their plans to bring remote workers back to the physical workplace, just 7% said they would bring only vaccinated employees back once vaccines are widely available, and only 6% said they would bring all employees back (and keep unvaccinated employees separate). What’s more, 49% are extending remote work at least into the summer and 37% are allowing employees who wish to work on-site to do so on a voluntary basis.

“It’s tempting to see vaccines as a cure-all for the extreme disruption wrought by COVID-19. But the reality is they are just one arrow in the quiver for employers, who must continue existing safety protocols, including symptom screenings, travel restrictions, face masks and distancing,” said Devjani Mishra, a leader of Littler’s COVID-19 Task Force and Return-to-Work Team. “Especially in the transition period — when some workers are vaccinated, and others are not — organizations must remain hypervigilant in enforcing these policies as a matter of workplace safety, while being mindful of employee morale.”

To wit, a survey by Clever found that just 20% of American workers would feel safe working in an office right now, and most workers would fear for their health (59%) and their family's health (58%) if they returned to an office

Respondents identified a wide-range of pandemic-related precautions they plan to keep in place even after vaccines are readily available, including encouraging or requiring wearing face masks (81%), modifying physical workplaces to maintain distance between workers (66%), limiting or restricting employee contact in common areas (62%), increasing frequency and depth of cleaning (56%) and conducting employee temperature or symptom screenings (50%).  

Providing access to COVID-19 testing is another way to keep employees safe in the workplace: 36% of respondents are either currently providing testing, planning to test or considering it. While 49% said they do not plan to, this is likely mainly a reaction to the high cost and myriad legal issues raised by testing, including employee privacy and information security issues.

“Workplace testing is a critical part of the return-to-work conversation, especially given that symptom screening will not identify infected, but asymptomatic, employees,” said Philip Gordon, co-chair of Littler’s Privacy and Background Checks practice group. “The recent appearance of more infectious strains of COVID-19 make workplace testing that much more critical.”

About the Author

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Brett Christie is the managing editor of Workspan Daily.


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