NEWS OPINION

Why Workplace Vaccine Mandates Are Complicated

COVID vacine app

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Robert L. Quigley, MD, DPhil, is the Senior Vice President and Global Medical Director, Corporate Health Solutions at International SOS & MedAire. After 25 years working in surgery, critical care, and immunology, he's using his expertise to advise on crisis management, infectious disease, and health care. Here, he shares his thoughts on how employers can navigate COVID vaccine mandates.

As COVID-19 cases decline across the United States and as employees are starting to return to the workplace, many employers are now looking to recalibrate their traditional business strategies. Although the pandemic has become less of a threat over the past few months, COVID-19 will continue to have an impact on the way companies set guidelines and policies for their employees now and well into the future, especially as variants continue to evolve.

Employees expect structure, but they also need assurance that their health and safety is the organization’s utmost priority. As employees return to the office, employers are faced with the important and challenging decision of whether or not to implement vaccine mandates.

If your company hasn’t issued a clear vaccine policy yet—or if you’re unsure how they made their decisions—here’s what you need to know about how it all works.

Vaccine Mandates Are Legal in Most States

Government-imposed mandates are nothing new in the U.S. For example, during the smallpox pandemic in the late 1800s, the federal government mandated smallpox vaccinations for all citizens, and as a result, smallpox was eradicated in America. However, this mandate was not without its own challenges, like the famous Jacobson v. Massachusetts case. This 1905 case made it all the way to the Supreme Court, and ultimately resulted in a financial punishment against the plaintiff, who refused to be vaccinated.

Today, with the COVID-19 pandemic, we’re seeing the issue of such mandates becoming very controversial. In January 2022, the Supreme Court blocked the Occupational Safety and Health Administration (OSHA) from enforcing a COVID-19 vaccine mandate for employees of large companies—at least while other cases against OSHA’s “emergency temporary standard” are heard in the lower courts. However, most private companies can still issues vaccine mandates, since there’s no federal law against them.

Why Requiring Vaccines Isn’t Discriminatory

The U.S. Equal Employment Opportunity Commission (EEOC) enforces anti-discrimination laws, which do not prohibit employers from requiring a vaccination for all employees who physically enter the workplace. Employers that choose to require vaccinations should have reasonable accommodations in place for those who refuse to get vaccinated for medical or religious reasons.

In the case that an employee refuses to become vaccinated for these reasons, employers must evaluate the potential threat this individual poses to the workplace. Should this individual pose a threat to the workplace, the employer may offer the opportunity to work remotely or take a leave of absence. If the employer finds that the employee does not pose a threat when entering the workplace, they may consider other requirements such as regular COVID testing, mask mandates and/or daily temperature checks.

Companies of All Kinds Are Requiring COVID Vaccines

Corporations know that there is an ethical—and in many cases, legal—obligation to protect employees, to ensure their health and safety against foreseeable risks. At International SOS, the health and security services firm where I work, we’re seeing businesses of all sizes require vaccination of employees. They recognize it as part of their “duty of care.”

Larger corporations with mobile workforces and offices in different global locations are more inclined to enforce vaccinations against any highly-transmissible infectious diseases. Similarly, a smaller organization with a handful of employees may also require vaccinations, as it may not have the bandwidth to maintain productivity when its staff is absent due to illness.

While there is no one-size-fits-all approach, what we do know is that there is an evidence-based argument for receiving the COVID-19 vaccine and boosters: They continue to protect against serious illness, hospitalization, and death.

Hybrid Workplaces May Be More Lax

As more companies allow hybrid work models for their employees, they may be less inclined to implement vaccine mandates. Companies that are currently following a hybrid model may choose not to require vaccinations as a way to avoid employee pushback, and ultimately increase retention.

With a hybrid work model, there is opportunity to follow different guidelines to ensure employee health and safety, such as rotational schedules, social distancing, weekly testing, and disinfecting policies.

What Employers Should Do

Regardless of whether a corporation chooses to implement a vaccine mandate or not, it is their responsibility to stand behind a rationale based on health and safety, and transparently deliver such information by credible leadership. When making this decision, it’s imperative that organizations take the following into consideration:

  • Management should maintain transparent communication with regular cadence to all employees, providing legitimate, evidence-based facts that are delivered by a respected subject matter expert (like a Chief Health Officer). 
  • Duty of care plans should be cross-referenced with multiple best practices to define what is the best approach for employees and the organization, whether that be vaccine mandates, contact tracing, testing, etc. If there is a third-party mandate from local, regional, state, or federal government officials, it must be explained in detail to all employees.
  • Management should stay fluid as we continue to navigate the pandemic, but should also identify support tools that are readily available to staff.

This year will be a testament to the resiliency of employers and employees alike. It’s a balancing act for organizations as they look to not only follow the laws and guidelines that are in place, but also create a workplace where employees want to return and experience a positive culture.

The information in this article is current as of the date listed, which means newer information may be available when you read this. For the most recent updates on COVID-19, visit our coronavirus news page.

1 Source
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  1. National Federation of Independent Business, et al., applicants v. Department of Labor, Occupational Safety and Health Administration, et al. 595 U. S. ____ (2022).