United States:
Vaccination: compulsory or not?
August 24, 2021
Kelley Drye & Warren LLP
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U.S. employers have known for some time that they can require their employees to receive an FDA-approved Covid-19 vaccine. However, as recently as a few months ago, most employers didn’t, with a few exceptions in healthcare and Wall Street, which were either celebrated or notorious depending on the view.
The balance has now shifted significantly.
A survey in February 2021 found that almost 80% of employers decided against compulsory vaccination because their employees were personally against vaccination. As one of our clients put it: “If we had a mandate, half of our workforce would quit.” So the initial attitude of most employers was essentially an employee relations choice, and employers “urgently” requested vaccination but did not request it.
It looks like months of “strong encouragement” haven’t moved the needle one way or the other. Our unscientific guess (but one generated by endless discussions with our customers) is that employees who personally tended to be vaccinated, with or without mandate, were vaccinated and those who were against it were not – which is hard to say everyone was “encouraged” to do something they wouldn’t do anyway. Result: According to the CDC, only about 50% of the US population is fully vaccinated.
Enter the delta variant. Many states now have high transmission rates. Overloaded hospitals in under-vaccinated parts of the country are rationing care in the truest sense of the word. While the percentage is small, there have also been reports of breakthrough vaccine infections, a harbinger of small but clearer risks even to vaccinated individuals. In response to rising transmission rates, the CDC published guidelines on July 27th recommending that all people (regardless of vaccination status) wear masks again in public indoor spaces in areas with significant or high transmission. On July 29, the federal government – America’s largest employer – set rules for federal employees and contractors who require a certificate of vaccination. Unvaccinated federal employees must wear masks, get tested weekly, and be subject to travel restrictions.
So it’s no wonder that the private sector has taken note of this, as significantly more employers are now demanding a vaccination. But many others haven’t made that decision yet. For those who haven’t, the obvious question is: how should we analyze risks to both employee safety, morale, and the company to find out whether or not to mandate?
The basic rules of compulsory vaccination
Let’s look at the basics:
- Employers may require vaccination, subject to exceptions under state and federal laws that may require an employer to provide housing to people with disabilities or good faith religious beliefs that prevent their vaccination.
- Employers may require employees to provide proof of vaccination, subject to any state law or regulation restrictions.
- Employers can implement occupational safety standards based on vaccination status. In practice, this usually means having different rules for dealing with other people in and out of the office, depending on the vaccination status.
But all of this just tells you what to do. It doesn’t start with what you should be doing.
How to choose
Forget Politics: Throughout this whole pandemic, the only point to follow CDC’s masking and social distancing guidelines, and the only point to ever encourage or require vaccinations, was to reduce the risk of that an employee claims that an employer has not done everything possible to ensure the safety of the employees.
Example: John comes to a workplace where nobody is vaccinated or wearing a mask; John gets infected or takes the virus home and infects his immunocompromised mother-in-law; and whether or not John takes special care of his mother-in-law (or himself), someone becomes seriously ill, has “long covid” (which, incidentally, is now recognized as a protected category under some disability discrimination laws), or dies. John or John’s estate then sues his bourgeois employer for failing to take fundamental steps to mitigate an apparent risk to the workforce and / or John’s mother-in-law.
The safety rules are about safety, but also about liability. As with any safety requirement, a major goal of a mandatory vaccination program is to defend against claims that an employer knew about risks and did not contain them. And the science of Covid-19 risk reduction is final: a vaccinated person gets sick, dies and infects others much less, regardless of emerging statistics on breakthrough infections. We would argue that if the delta variant is devastating and masking obligations and social distancing rules are difficult to monitor, then erring on the side of absolute caution and exploiting the right to vaccination is an obvious and good risk, not least of all management- Practice.
So what about our client who fears that half of his workforce will resign in the face of a mandate? Since losing a workforce is at least as damaging as any Covid-19 outbreak, we would do the following:
- Unless an employer expects such opposition that a vaccination mandate would become a huge labor relations problem, it is safer to give a mandate than not to at this point. Due to the portability of the Delta variant and because masks do not offer complete protection, an employer who expects his employees to be physically at work runs a lower risk if he simply prescribes a vaccination, which is more difficult to prevent Illness / death is far more effective than masking or social distancing alone.
- If half of your workforce is going to quit, make sure you stick to the mask requirement, adhere to social distancing rules, strongly request vaccinations and keep your fingers crossed. The economic risk of firing half of your workforce can outweigh the potential economic risk of contracting some employees with Covid – realizing that employee safety has no price. In contrast, employers who have a work / office environment, who do not operate in deep red states, or whose employees are already largely voluntarily vaccinated, need to worry much less. These employers could reasonably expect a minimal and manageable pushback to a vaccination order.
- Based on the considerations in the first two bullet points, an avalanche has now been commissioned by employers or will be commissioned sometime in September / October. You may have heard of a few: United Airlines, Facebook, Cisco, Amtrak, Google, Ford, Netflix, NBCUniversal, Tyson Foods, DoorDash, Walgreens, Walmart, at least half of Wall Street, and many other high profile private employers. There is a certain degree of “security in numbers”: employers considering mandates will increasingly assume that they are not the only ones or that they are somehow a novel “test case”.
Regardless of whether introducing a mandatory vaccination program is right for your company, it is always advisable to consult outside advisors for individual advice and recommendations.
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
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