As people who have been waiting for Covid-19 vaccines can now more easily get them, thorny questions are arising for employers about those who can't — or won't — get vaccinated. Human resources experts say there are legal and managerial ramifications — and the stakes are high for companies to get it right.
Distrust about the vaccines is a primary hurdle for employers, said Robert Simandl, a lawyer at the law firm of von Briesen & Roper. "The resistance to the vaccination is a bit surprising," he said. "I'm surprised by the assertion that it's not safe or somehow it's a government ploy to harm certain people. The disinformation has been my biggest surprise."
A survey from Arizona State University funded by the Rockefeller Foundation found that U.S. employers are taking a carrot-and-stick approach. About two-thirds said they plan to offer incentives for workers. Almost half, 44 percent, told surveyors that if that doesn't work, they plan to mandate vaccination; 31 percent said they would encourage it but not make it a condition of employment.
An earlier survey of HR professionals conducted by the Society for Human Resource Management, or SHRM, yielded fairly similar results, although the questions were phrased a little differently: 60 percent of respondents said they wouldn't mandate vaccinations, and among that pool, about three-quarters said they planned to recommend that workers get vaccinated.
Sectors in which mandating is more prevalent include health care and academia. A handful of hospital and health care systems have implemented vaccination mandates, as have a number of higher education institutions. The University of California last month proposed a policy that would require students, faculty and staff members who planned to be on-site at any university facility to be vaccinated by the start of the fall semester. "Vaccination is essential for the safety and well-being of the community," the school said.
Other industries that require people to work together in close quarters or interact with the public, such as restaurants, retail and travel, might be more likely to consider mandating vaccinations, said Amber Clayton, director of the SHRM Knowledge Center.
The outlook is different for small businesses, which are more likely to have fewer resources for potential litigation, as well as closer connections between upper management and rank-and-file workers. A survey conducted by the National Federation of Independent Business, a small-business trade group, found that while close to half said they would encourage employees to get vaccinated, only 3 percent said they would require it.
Taking a heavy-handed approach could backfire by sending a message about a company's culture more broadly. "The other thing to consider is whether or not requiring the vaccine will help or hurt with your recruiting efforts," Clayton said. "There could be some challenges with recruitment and retaining employees."
Whether a pro-vaccination stance would attract or alienate workers could vary based on a job or a location and the demographics of the labor pool. So far, opinions appear to be split: A recent SHRM survey of U.S. workers found that 52 percent would support their employers' mandating that employees be vaccinated.
Labor and employment lawyer John Ho, chair of the Occupational Safety and Health Administration practice at the law firm of Cozen O'Connor, said the emergency-use status of the vaccines could be dissuading some employers from mandating their use, a stalemate that could change once the vaccines get full approval from the Food and Drug Administration, which Dr. Anthony Fauci, the White House chief medical adviser, said could happen "very soon."
"It puts us all in unclear waters," Ho said. "Once one of these goes permanent, I think, more companies will be comfortable in mandating it."
But even then, Ho said, the issue is fraught enough that employers should take the time to consider the impact of whatever policy they want to implement. "This is an important enough issue that you should have a written policy," he said.
Even offering incentives, such as cash, could be legally risky, said Kelly DuFord Williams, founder of Slate Law Group. "You've got to be careful by what you mean by 'encourage,'" she said, because workers — especially in lower-paying positions — might feel they can't afford to pass up financial incentives.
An appeal to the greater good, on the other hand, could work better.
Simandl said: "I get very few conversations about mandating vaccination. Most employers are really taking the position that this is something they want the employees to embrace themselves as a part of a greater good for their business communities. That's really been the driving influence here.
"They are looking for every way possible to encourage individuals to make decisions based on the science and the value to the vulnerable population," he said. "That's where I'm seeing significant compliance opportunities."