Vaccine Mandates: The Elephant in the Room
COVID-19 and its variants continue to disrupt the way we live, work and play. The population disagrees on whether to wear masks or be vaccinated, and businesses struggle to attract workers. At the same time, we all are trying to move toward a new definition of normal.
Some clear guidance
One of the most pressing issues is whether businesses can — or should — issue a vaccine mandate for their employees and customers. Here, there is some clear guidance:
President Joe Biden's vaccine mandates: On Sept. 9, Biden issued far-reaching mandates intended to require unvaccinated Americans to be vaccinated. It is likely that these mandates will be litigated, but as of this writing, this is how private businesses across the U.S. will be impacted:
- Businesses with more than 100 employees must require their workers to be vaccinated or subjected to weekly testing.
- Workers must be given paid time off to get the vaccine.
- Companies that ignore the policy could face penalties of up to $14,000 for each violation.
Businesses with fewer than 100 employees will use different criteria to make their decision about whether to mandate vaccines.
The Department of Justice: The DOJ stated that federal law permits employers to require employees to be vaccinated, subject to any medical or religious exemptions that may be required under the Americans with Disabilities Act or Title VII of the Civil Rights Act of 1964.
Equal Employment Opportunity Commission: EEOC guidance reinforced employers' general right to mandate vaccines for in-person employees under the ADA and Title VII. Employers are required to offer exemptions to vaccination mandates for religious or medical reasons, but employers may reassign or terminate employees if their unvaccinated status would make the workplace unsafe and any accommodation would lead to "undue hardship" for the business.
The Centers for Disease Control and Prevention: The CDC recommends that the unvaccinated wear a mask in all indoor public settings and that fully vaccinated individuals should wear a mask indoors in public areas of substantial or high transmission. The CDC also plans to administer booster shots to recipients of the mRNA vaccines starting eight months after an individual's second dose.
Occupational Safety and Health Administration: OSHA recommends that employees wear a mask in indoor public settings in areas of substantial or high transmission or if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated.
As of the date of this writing, there has been no differentiation between the Pfizer-BioNTech COVID-19 vaccine, which has received full approval by the U.S. Food & Drug Administration, and those that have only Emergency Use Authorization, like the Moderna and Johnson & Johnson vaccines.
However, this guidance still leaves some unanswered questions, such as whether only fully approved vaccines can be mandated.
State and/or local laws: State and/or local laws that could apply to employer-mandated vaccination programs must also be considered. Some states have adopted mandates for certain employees to be vaccinated, while other states have pending or passed legislation banning "vaccine passports" and prohibiting businesses from requiring customers or employees to show proof of vaccination.
Employers need to carefully monitor developments in this area to be sure no laws are enacted that ban private employers from issuing vaccine mandates.
Litigation: As of this writing, the courts have turned back challenges to vaccine mandates. Some of those decisions are being appealed and more are likely to be. Businesses need to be diligent about staying up to date with recent court rulings, including the sure-to-come litigation regarding Biden's mandates.
The big question: How will a vaccine mandate affect a business's operations and profitability?
Implementing a vaccine mandate can impact a business in many ways, from its ability to attract talent to how customers' views on such mandates may affect sales. This is especially important for businesses that do not meet Biden's 100-employee threshold.
Here are four things to consider:
- Impact on staffing. In part, this depends on the industry the business is engaged in. If the industry is one where mandates are likely to be widespread, such as health care, it is not likely a vaccine mandate will cause people to leave. The risk of losing employees or not being able to attract talent is much higher in industries where vaccine mandates are the exception or where most workers are remote.
- Impact on clients and customers. The politics of masking and vaccines has become toxic, and businesses that implement mandates in these areas must be prepared to handle the potential repercussions of lost clients or customers, social media backlash, and potential lawsuits.
- Policy. Develop straightforward policies and procedures and communicate them clearly. These policies should include who is subject to the mandates, what proof of vaccine is required, who may be exempt, whether testing will be accepted for unvaccinated employees along with testing frequency and which test or tests will be accepted, and a procedure for employees who test positive.
- Responsibility. The final decision rests with company leaders, and they must be very thoughtful about whether and how they decide to implement and enforce a mandate.
Mandates carry a legal weight, but they are important in another way, too: They create a social norm. There was a time when putting on a seatbelt in a car was not mandated. It took time, but now, most people automatically put it on when they get into a car. It has become the norm. Today, company leaders are charged with deciding whether being vaccinated against COVID-19 will become the norm for their businesses.
Keep in mind that this is a fast-moving story, so advice and provisions noted here may change suddenly with little warning. Stay in touch with authoritative government sites.