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Should employers require a mandate to vaccinate?

By Larry Morgan, MAIR, SPHR, SHRM-SCP, GPHR

In one of the biggest moves yet to get Americans vaccinated against COVID-19, President Joe Biden last week unveiled new vaccination requirements that are expected to have major repercussions for employers.
 
Biden announced he is directing the U.S. Department of Labor to draft a rule that requires all businesses with 100 or more employees to mandate that their employees get vaccinated or undergo weekly COVID testing. Companies violating the rule could be subject to fines of $14,000 per violation, an administration official told CNN. The regulation, expected to be unveiled by the DOL’s Occupational Safety and Health Administration, will affect about 100 million Americans. 
 
In addition, the Biden administration has ordered military personnel, staff of hospitals receiving Medicare and Medicaid payments, and federal employees and federal contractors to get vaccinated. Many state and local government employees, and educational institution students and employers are also requiring vaccination or regular testing. Now that the Food and Drug Administration has approved the Pfizer vaccine, it becomes more difficult for employees to avoid the issue.
 
The new measure will also require employers to provide employees paid time off to receive the vaccine.

Implications of the mandate

While the executive order will undoubtedly be challenged in the court system, it behooves employers to address the issue. On the employer side, Willis Towers Watson reports that 52% of employers either have a mandate in place or will by the end of the year — a stat that was released before Biden’s recent executive orders.
 
“We’re going to protect vaccinated workers from unvaccinated coworkers,” Biden said during a Sept. 9 press event while unveiling the news. 

“The fact that the requirements apply across the board will give many employers the cover they were looking for ahead of rolling out mandates,” said Devjani Mishra, shareholder at Littler Mendelson and a leader of the firm’s COVID-19 Task Force. “Throughout 2021, we’ve seen that employers have been thinking very hard about whether to require workplace vaccinations, the ramifications this could have for their workplaces and whether they risk losing employees. The Administration’s approach will help equalize the playing field and take some pressure off employers who have been concerned about moving too fast or too early in this important area.”

Lorrie Lykins, vice president of research at the Institute for Corporate Productivity, said that, up until this point, the federal government’s strategy of allowing employees to opt out of vaccination in favor of testing, along with the ability to self-report vaccination status, had not been able to “guarantee safety.” With this new, more stringent approach, she said, the Biden administration is closer to that goal — and the shift will also “provide employers with more confidence in moving to require vaccination as a condition of employment.”

Steve Bell, a partner at law firm Dorsey & Whitney in its labor and employment practice, called the announcement by President Biden a “real game-changer for many employers,” predicting that the number of private employers that mandate vaccines is about to “increase exponentially,” even before the DOL news was announced.

Both employees and employers are also increasingly in favor of mandates. A recent survey from Qualtrics found that 60% of employees support vaccine requirements for in-person work, while a study released this week by Mercer revealed that nearly 65% of surveyed employees would prefer their employer implement a vaccine mandate.

The American Safety Council recommends the following actions be taken:

  • Routine testing: Require all workers and regular visitors (not retail customers) to be routinely screened with a rapid test, typically twice weekly. Repeated negative tests provide a high degree of certainty that the individual is not infectious.

  • Proof of vaccination: Allow anyone who provides proof of full vaccination (accounting for the appropriate time period after the final vaccine) to bypass the routine testing requirement.

  • Support workers: Offer paid time off for vaccination and recovery from possible side effects, including for working parents who choose to vaccinate eligible children.

  • Encourage vaccination: Consider organizing on-site vaccination clinics for workers and families, or offering transportation support, child care or incentives to improve access to vaccines.

Notably, employers have an obligation to provide employees with a safe and hazard-free environment under Section 5 of OSHA’s General Duty Clause. There are also financial incentives for employers and employees to act now. The average cost of a COVID-related hospitalization is $150,000, which affects health insurance costs.

Looking at the options for employers

So, let’s try to remove any political context and treat this as a public health emergency.  What are the options for employers?

  • Do nothing and hope the situation will improve. This is probably not a great option given the increasing number of reported COVID-19 infections and the rapid spread of variants.

  • Mandate all employees to become vaccinated or face termination. Exceptions for those employees with a “deeply held religious conviction” or medical reasons, in which case employers many require those employees to wear masks or arrange accommodations to work from home or in an alternate environment. The exemptions would require religious or medical certification. Discuss religious or disability accommodation options with employees under the U.S. Equal Employment Opportunity Commission (EEOC) and the Americans with Disabilities Act. These issues can be tricky to navigate. Please see details at the end of this article or reach out to the HR Hotline.

  • Mandate the vaccination and/or wearing of masks at all times while in the office.

  • Provide financial incentives for employees to get vaccinated, including monetary or nonmonetary reward or a financial penalty in terms on higher health care premiums for nonvaccinated employees and out-of-pocket testing requirements.

  • Continue with a flexible work environment with employees choosing to work full time remote, a hybrid model or full time in the office. This would provide flexibility and allow employee concerns to be addressed.

  • Continue educating employees on the facts about the vaccine’s safety.

  • Continue to use health and safety best practices, including daily wipe downs of the office including desks, coffee machines, lunch areas, keyboards and phones. Place hand sanitizer and disinfecting wipes throughout workspaces, implement alternative schedules and social distancing, and reduce in-person meetings and social gatherings.

In addition, employers should develop policy and process options, including manager training to address employee issues such as:

  • Employee refuses vaccination and refuses to discuss reasons to not become vaccinated.

  • Employee is showing symptoms of COVID at work or while working remotely.

  • Employee has been exposed to someone with a confirmed case of COVID.

  • Employee has traveled to a COVID “hotspot,” such as a different state or country.

  • Employee’s child’s school or daycare is closed due to a COVID outbreak.

  • Paid or unpaid time.

  • Testing and quarantine protocol.

 Medical and religious accommodation

While medical certification would require a statement from a health care professional, the religious exemption is more difficult. The EEOC has listed certain facts that might create some doubt as to the sincerity of the employee's belief. The MNCPA HR website offers forms for these accommodations. The following might indicate that an employee’s professed religious belief is not sincerely held:

  • Whether the employee has acted in a way that is inconsistent with the claimed belief.

  • Whether the employee is seeking a benefit or an exception that is likely to be sought for nonreligious reasons.

  • Whether the timing of the request is questionable (for example, because it follows closely on the heels of the same employee’s request for the same benefit for different reasons).

  • Whether the employer has other reasons to believe that the employee is seeking the benefit for secular reasons.

This is not an easy issue for any employer or employee to navigate. It’s nuanced, personal and comes with a number of challenges. Spend your time now understanding what works best for your situation so you’re ready if and when a conversation about this arises.

Reach out to the HR Hotline

You may use the HR Hotline for updated advice on dealing with employee requests for religious or medical accommodations as well as employer mandates. Connect with Larry Morgan through this MNCPA member benefit at hrhotline@mncpa.org or at 952-885-5539.