COVID-19 vaccine mandates no less tricky after FDA approval

With the U.S. Food and Drug Administration (FDA) announcing final approval of the Pfizer COVID-19 vaccine this week—and the persistent threat posed by new versions of the virus, particularly the Delta variant—employers are now considering vaccine mandates in much greater numbers, according to a recent survey of 1,630 in-house counsel by the firm Littler Mendelson.

Six months ago, less than 1 percent of employers surveyed had instituted vaccine mandates, and 9 percent were considering them, Littler found. In the firm’s most recent Vaccine Employer Survey, the percentage of respondents whose organizations are currently mandating vaccines or planning to in some form has doubled from less than 10 percent to 21 percent.

Of those employers, 9 percent are currently mandating vaccines for some or all of their workers. Another 12 percent are planning to impose a mandate in the near future (8 percent) or for specific subsets of individuals (4 percent).

“Employers are really thinking hard about this decision,” said Devjani Mishra, a leader of Littler’s COVID-19 Task Force and its Vaccination Working Group. “It’s forcing them to ask themselves who they are as an organization; ‘should we be mandating vaccines, and is it something we are comfortable doing?’”

The stick—vaccine mandates

The U.S. military has accelerated its vaccine mandate since the FDA’s announcement, while dozens of state and local governments and school systems have mandated vaccines for their employees. In the private sector, companies including Google, Delta Air Lines, Tyson Foods, and CVS Pharmacy have issued vaccine mandates for some or all workers, according to NBC News.

The FDA’s approval of the Pfizer vaccine is a watershed moment for many companies considering vaccine mandates, even though legal approval was granted by the U.S. Equal Employment Opportunity Commission in December 2020, updated several times, and withstood several legal challenges.

“Employers are really thinking hard about this decision. It’s forcing them to ask themselves who they are as an organization; ‘should we be mandating vaccines, and is it something we are comfortable doing?’”

Devjani Mishra, a leader of Littler Mendelson’s COVID-19 Task Force

“There was a lot of opposition based on the fact this was an emergency approval” for the vaccine, Mishra said. The approval does shift the discussion, she said, particularly with employees who expressed hesitancy to get a shot under the vaccine’s emergency authorization. (Other widely distributed COVID-19 vaccines from Moderna and Johnson & Johnson are scheduled to receive final approval from the FDA later this year).

What do some of these vaccine mandates look like? They are as different as the organizations that enact them, Mishra said.

A third of employers (33 percent) that have either implemented a vaccine mandate or are planning to implement one said the punishment for refusing to be vaccinated is termination, the Littler survey found.

Another third (35 percent) said workers must either be fully vaccinated or submit to regular COVID-19 testing before being allowed to return to work. Fourteen percent of those employers said workers who decline to either be vaccinated or tested will be terminated, and 18 percent said their plans were still being developed.

“A lot of employers are looking at vaccinations as critical to the health and safety of their organizations,” said Mark Neuberger, of counsel with the firm Foley & Lardner. “Private companies have the absolute right to implement a vaccine mandate if they want to, subject to compliance with any state or local mandates to the contrary. The question is, should they?” Each organization must make that decision based on its unique circumstances, he said.

If your company is contemplating a COVID-19 vaccine mandate for its employees, here are several key issues to consider.

What are the numbers? No organization should make this decision without hard data. Ask your employees if they are already vaccinated against COVID-19 or plan to be vaccinated by a certain date. It is perfectly legal to ask employees about their vaccination status, even though it may be classified as medical information, as long as that information is not disseminated beyond those in the company who absolutely need to know, Neuberger said.

The Americans with Disabilities Act requires employee medical information be stored separately from regular personnel files.

Once you know the percentage of vaccinated employees in your organization, set a target. What percentage of employees do you need to be vaccinated for all your employees to feel safe? And by what date?

Potential blowback. One of the biggest fears of employers considering a vaccine mandate is that employees will quit en masse, Mishra said. The Littler survey found 60 percent of employers surveyed worried about a loss of staff and a resulting difficulty to operate if they implemented a vaccine mandate, behind only impact on company culture (68 percent) and resistance from employees not in a protected category (75 percent).

Messaging. “Start with the why,” said Mark Blondman, partner with Blank Rome. “It should be emphasizing the health and safety benefits to everyone. That’s the core message.” Blondman said his firm has advised clients that any mandate should not be immediate but should be set at least a month or more into the future to allow employees time to get vaccinated.

Exemptions. This is perhaps the most difficult part of implementing a vaccine mandate. Employees can refuse to be vaccinated for medical reasons or for a firmly held religious belief. Vetting the first exemption request is straightforward—the employee should provide medical documentation about why a COVID vaccine would harm their health.

Vetting the second type of exemption, though, is full of potential pitfalls. Who can verify a person’s sincerely held religious belief? Some religious groups, like Catholic leaders in Philadelphia and Las Vegas, have said they will not support parishioners seeking exemptions to COVID vaccine mandates. Other religious groups, including churches in California and North Carolina, are offering religious exemption letters to their parishioners.

Exemption requests need to be handled fairly and discreetly, Blondman said, ideally by a committee tasked with vetting and processing all the company’s exemption requests or by a dedicated team within its human resources department.

Workplace accommodations. If an employee is refusing to be vaccinated, can steps be taken to mitigate their exposure to other employees? Can they work from home? When they come to work, can they work in a separate space? Can they avoid common areas? Of course, unvaccinated employees would have to continue wearing a mask long after a mask mandate was dropped for vaccinated employees.

Testing. One of the ways companies are softening mandates is to require all unvaccinated employees to be tested for COVID-19 on a regular basis. But Mishra warns this approach could backfire.

“Employers will have to pay for tests in most cases, and they will have to find tests that are reliable and accurate,” she said. “You may find you will spend a significant amount of money on testing, and it is not getting you any closer to your vaccination goals.”

The carrot

The vast majority of respondents in the Littler survey—63 percent—said they will encourage their employees to be vaccinated but won’t require them.

What are employers doing who are following this path? The most common tactic is paid time off for employees who receive a vaccine. Between two and six hours of paid time is most common, according to GoodRx.

“Deal with objectors in a humane way. Listen to them and take their concerns seriously.”

Mark Blondman, Partner, Blank Rome

Other companies are offering cash, from $25 up to $500, to employees who agree to get a jab. If employees experience side effects from their COVID-19 vaccination, employers should be generous with paid sick time.

Some employers are using a mix of peer pressure and incentives, like offering some benefit, bonus, or even a day off to everyone in a division or workplace if a certain percentage of employees are vaccinated, Mishra said.

“It’s a good strategy because it says we all get something if we get there, and we’re all in this together,” Mishra said.

Other companies are making access to vaccines easier, either by offering an on-site vaccination clinic or providing transportation to a nearby clinic.

The best thing a company can do with an employee who is vaccine-resistant is listen to them, Blondman said.

“Deal with objectors in a humane way. Listen to them and take their concerns seriously,” he said. If you can’t get them to agree, offer them an accommodation that works for the company and the employee.

“We are telling our clients to be flexible, up to a point,” he said. “We’re constantly talking to our clients about alternatives, so you don’t get to the ‘you’re terminated’ conversation.”