SC won’t mandate vaccinations, but employers can. Will they require COVID shots?

·9 min read

With many southern states, including South Carolina, struggling to get COVID-19 shots into residents’ arms, despite concerted vaccine outreach and incentives, some argue private businesses are our last best hope for getting out of this pandemic.

That’s because businesses, with some exceptions, can legally require their workers to get COVID-19 shots, according to the U.S. Equal Employment Opportunity Commission.

The vast majority of workers, unwilling to risk their livelihoods over an inoculation, will get vaccinated if an employer requires it, or so the argument goes.

But will employers actually mandate worker vaccinations? Most are not going that far, experts say, relying instead on strong encouragement and sometimes incentives — but not hard-and-fast requirements.

“The vast majority of businesses in our state are not mandating the COVID-19 vaccine for their employees,” S.C. Chamber of Commerce President and CEO Bob Morgan said in a statement. “The few that are considering it, mainly within the healthcare sector, are doing so for the safety of their patients. Rather than mandating vaccines, many businesses are considering offering incentives to employees who get vaccinated, such as paid time off and other perks.”

As of Friday, just 40% of eligible South Carolina residents were fully inoculated, according to the state Department of Health and Environmental Control, one of the lowest rates in the country.

State health leaders have ramped up vaccine education and public messaging campaigns, pushed doses into rural and underserved areas and even incentivized vaccine uptake, but their attempts to boost South Carolina’s flagging vaccination rate have hardly moved the needle.

Vaccine hesitancy, or outright resistance, is the primary reason people aren’t rolling up their sleeves. While some skeptics have eventually gotten COVID-19 shots, many remain unswayed by DHEC’s outreach efforts.

“Clearly, we have work to do on vaccinations,” DHEC Director Edward Simmer said at an agency board meeting last week. “Our vaccination rate is not where we want it to be.”

With trust in government at near-historic lows and the pandemic already highly politicized, some view employer-mandated vaccinations as a more palatable path to herd immunity than the state requiring people to get stuck.

Few employers mandate COVID-19 vaccinations

A recent nationwide survey by the management consulting firm Willis Towers Watson found only 3% of employers were currently requiring workers to get vaccinated before returning to the workplace and another 15% were planning to or considering implementing such a policy.

Fisher Phillips, a national labor and employment law firm with offices in Columbia, reported similar results last month after surveying more than 600 employers. Its poll found that just 4% of employers were requiring or considering requiring a COVID-19 shot and another 13% were unsure.

Large majorities of employers in both surveys said they would not mandate vaccinations, although most are encouraging their workers to get shots and helping assist them with the process.

Employers that aren’t requiring shots are generally of the belief that anyone willing to roll up their sleeve already has done so or are concerned that a vaccination requirement might run afoul of the law, Fisher Phillips found.

Negative publicity and the prospect of losing workers is also a consideration for employers, said Kevin Troutman, a partner with Fisher Phillips who leads the firm’s vaccine workgroup and serves as chairman of its national healthcare practice group.

“There’s lots of strong feelings (about COVID-19 vaccinations) in communities and among small groups of employees, which means if an employer requires vaccinations it will get pushback and may get some media attention,” he said. “Some employees may leave or test the water with a lawsuit.”

That’s what happened in Texas, where more than 100 Houston Methodist Hospital workers filed a federal lawsuit against the health system after it required employees to get vaccinated or face termination.

A judge recently dismissed the suit, which likened the hospital’s mandate to medical experiments performed in Nazi concentration camps, calling that comparison “reprehensible.”

“Methodist is trying to do their business of saving lives without giving them the COVID-19 virus,” Judge Lynn Hughes wrote in his order dismissing the suit. “It is a choice made to keep staff, patients, and their families safer. (The plaintiff) can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”

The judge’s ruling is not binding on other courts, but likely will be instructive for jurists who encounter the same question in other states, such as South Carolina, Troutman said.

Lewis Cromer, a Columbia lawyer specializing in employment law, said he wasn’t aware of any lawsuits filed in South Carolina over employer-imposed COVID-19 vaccination mandates, but said he had received calls from several workers concerned about losing their jobs if they spurned vaccination.

He declined to disclose the workers’ employers, citing attorney-client privilege, but said they included health care institutions and law enforcement agencies.

Cromer said he advised them that by refusing to get vaccinated they were likely risking their jobs.

A judge weighing such cases would need to balance an employee’s individual right to decline the vaccine with the public’s right to be protected against possible infection with a deadly virus, he said.

Cromer said he believes such a decision could hinge on the worker’s profession.

If he works in health care or law enforcement, where risk of exposure to COVID-19 is elevated, a judge likely would uphold an employer’s vaccination mandate, he said. On the other hand, if the worker did not have a high-risk job, he might win a case against his employer, Cromer said.

SC hospitals vary on vaccine mandates

Employers that have mandated COVID-19 shots span a variety of industries from manufacturing and food processing to professional services and higher education.

Vaccination requirements in health care, however, appear to be more common than in many other industries, experts said.

South Carolina Hospital Association spokesman Schipp Ames said the organization believes hospitals should have the flexibility to make their own decisions about employee vaccinations based on what’s best for their patients and staff.

“A hospital feels a responsibility to patients and the communities it serves,” he said. “They take that obligation very seriously and are working to balance that duty against the values of staff, patients and the public.”

The Medical University of South Carolina is the only hospital system in the Palmetto state currently known to be mandating COVID-19 inoculations for employees, Ames said.

MUSC’s two-phase vaccination policy, adopted in mid-April to protect the health of its employees, patients and hospital visitors, required all health managers to get vaccinated by April 30 and all other MUSC Health employees to roll up their sleeves by June 15, hospital spokeswoman Heather Woolwine said.

“We want to provide a place where people feel safe to come and receive care because we’ve achieved herd immunity in our system,” she said.

MUSC employees can opt out of vaccination for either religious or medical reasons, but only 3% of the hospital system’s health leaders did, Woolwine said. The other 97% complied by the April 30 deadline.

As of Friday, all but 102 of the roughly 17,000 MUSC Health employees — excluding university employees and students not on clinical rotations — were in compliance with the health system’s vaccination requirement, Woolwine said.

Of those in compliance, 1,896, or about 11% of all employees, have received exemptions, with the majority of those being medically-related, she said.

While there was initially some confusion about the hospital system’s vaccination requirement, Woolwine said she wasn’t aware of any significant employee pushback or resignations related to the policy.

Unlike Houston Methodist, MUSC is not terminating non-compliant employees who fail to state a legitimate exemption. Rather, personnel who refuse the vaccine are simply required to wear a facial covering at all times while on MUSC campuses — even after mask requirements are lifted for others — and must submit to routine COVID-19 testing.

“No one wants this to be a punitive thing,” Woolwine said. “It’s all about the safety of the care team, patients and their families and visitors.”

Other South Carolina hospitals may not be mandating employee vaccinations, but many are strongly encouraging workers to get shots, Ames said.

“We’ve heard of incentives, we’ve heard of cash bonuses. We know hospitals are really doing everything within their power to make their employees feel safe and encouraged to receive the vaccines,” he said.

When contacted by The State, representatives from Prisma Health, Spartanburg Regional, McLeod Health, Roper St. Francis Healthcare and Lexington Medical Center all said they were hoping to boost vaccine uptake among employees.

McLeod, which operates multiple hospitals in the Pee Dee, is offering vaccinated workers an undisclosed financial incentive.

Roper St. Francis in the Charleston area is giving employees who get the jab credit toward an employee wellness program that rewards workers with lower health care premiums, spokesman Andy Lyons said.

The hospital system also is holding forums where vaccine-hesitant employees can get their questions about COVID-19 shots answered so they feel more comfortable getting inoculated, he said.

As of this week, 99% of Roper St. Francis physicians and 65% of its 6,000 total workers had gotten a shot, Lyons said.

Lexington Medical Center, which like some states has adopted a COVID-19 vaccine lottery, will hold prize drawings for vaccinated employees every weekday from late June until mid-August.

Items up for grabs include electronics, sporting goods, gift cards and vacation time. The winner of the grand prize drawing, scheduled for Aug. 12, will take home a 2021 Subaru Forester, hospital officials said.

“We want to encourage our unvaccinated employees to receive a COVID-19 vaccine and also show appreciation to the employees who already have,” senior vice president of operations Roger Sipe said in a statement. “As we’ve seen with many states and organizations across the country, this type of incentive program is an encouraging way to do that.”

Lexington Medical Center, which currently has a 63% employee vaccination rate, aims to have three-quarters of its workers inoculated against the coronavirus by early August, Sipe said.

None of the hospitals reached by The State said they were reconsidering mandating COVID-19 vaccinations in light of the recent court ruling in Texas, but experts believe that case could sway some employers who had been on the fence about instituting a vaccine requirement.

“Most employers have already been encouraging vaccination and a lot have had success incentivizing and educating their work force about the vaccine,” said Jenna Brofsky, a management-side employment lawyer at Husch Blackwell in Kansas City. “But this ruling certainly will provide some employers with a little more piece of mind, if that’s the direction they’re moving in.”

Troutman, of Fisher Phillips, said he thought employers concerned about the legality of a mandate would be reassured by the Houston Methodist decision, but didn’t believe it would result in a large number of companies enacting new vaccine requirements.

“It might be a ripple,” he said. “But it’s not going to be a tidal wave.”

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