Employers Ponder Vaccine Challenges

Nancy Grover

Sarasota, FL (WorkersCompensation.com) – A recent national survey showed 60 percent of Americans would accept a COVID-19 vaccine. Of the remaining 40 percent who responded to the Gallup/Kaiser Family Foundation/Pew Research Center poll, 13 percent said they would reconsider if an employer required it. That begs the question: should employers mandate the vaccine for their employees?

It’s a daunting challenge for many employers, as they seek to make their workplaces as safe as possible. But there are many variables involved. Aside from the political emotions and uncertainties, there are legal questions. Experts say it could be a tough row to hoe, and many recommend organizations encourage rather than demand their workers get vaccinated.

Mandating the Vaccine

Most employers say they won’t require their employees to get vaccinated. In fact, a survey of 700 employers by the law firm Fisher Phillips showed only 9 percent saying they might require shots. Industries most likely to see vaccine mandates were agricultural and food production, construction, healthcare, hospitality and retail. For those employers who do want to ensure their employees are vaccinated, there are some things to keep in mind.

“Looking at [Equal Employment Opportunities Commission] guidance that came out late in 2020, they did not explicitly say employers can mandate [the vaccine],” said Michael A. Shadiack, chair of the Labor and Employment Group at Connell Foley LLP in Roseland, N.J. “What they did say is ‘if you mandate, here is how you have to implement it. Here are these accommodations. And here is how to engage in the interactive process for religious or disability [objections].’ So, you can mandate, yes, but there are a lot of issues that go along with that.”

Shadiack participated in a recent USLAW EduNet webinar on vaccines in the workplace. As he pointed out, workers have a couple of ways to opt out of a mandated vaccine.

“One, Title VII, they can seek an accommodation, or refuse based on sincerely held religious beliefs,” he said. “Or under the Americans with Disabilities Act, if they believe that due to a disability they have, maybe they will have a severe reaction, they can refuse.”

Another consideration is workplace safety, via OSHA guidance.

Then there is the matter of the consequences.

“If we’re going to mandate the vaccine and a worker refuses, what are you going to do about it?” Shadiack said. “What’s the penalty? Say, ‘you can’t work here?’ What if 50 percent of your workers say that? Are you going to fire 50 percent? It’s a very practical consideration.”

There are, of course, ways around the objections of workers who would refuse a requirement to get vaccinated. For employees who object based on a disability, employers are advised to engage in the interactive process with them and see if an accommodation is possible, such as a work-from-home plan. Seeking an accommodation for a worker who claims a sincerely held religious belief is also recommended, especially since these cases can be extremely difficult to defend.

“While this is a different set of circumstance then we’ve been faced with, we’ve got a lot of existing guidance,” said Albert B. Randall, president of Franklin & Prokopik, P.C. “The ADA is still the ADA. Title VII is still Title VII. We’re still going through a lot of the same analyses. You might be applying them to a different set of facts, but there is some guidance. Seize upon it. Let’s stop a second, go back to what we know and apply it to what we have currently.”

For the vast majority of employers, however, the speakers recommend they use persuasive, rather than mandatory measures to get employees vaccinated.

Encourage Vaccination

Most employers surveyed by Fisher Phillips — 78 percent — said they would encourage their workers to take the vaccine. But they are also perplexed about just how to do that.

“I really think it’s about removing the barriers,” said Tahlya Wilhelm, director of Corporate Claims and Teammate Safety at DaVita Inc. “In addition, because it’s been a political tool and there is so much mistrust, don’t underestimate the power of showing,” by having leaders get vaccinated.

DaVita, with 65,000 employees is taking what Wilhelm called “a very educational approach” to encouraging vaccinations among its employees. “Employers are going to have a very important role, whether it’s mandated or voluntary, in educating employees on what the vaccine is and isn’t so they can make that informed decision for themselves.”

The company’s medical chief has been analyzing clinical trials since December and has helped develop easy talking points for managers to converse with workers who may be undecided or don’t want to get the vaccine.

“Don’t combat them with more science and data,” Wilhelm said. “Fear doesn’t respond to data; fear responds to trust.”

Incentives

One issue that can smooth the way for workers to get vaccinated if they choose to is by providing the time to do that. Davita, for example, compensates workers for the time to get the shots and for mileage getting to and from the vaccination sites. One police department implemented a ‘training day’ to allow its officers to get the vaccine.

Other organizations are considering various incentives to encourage their employees to get a vaccine, such as money, or other perks. But the speakers had some cautionary words about those.

“We really want to avoid any discrimination claims coming out of those incentives. For example, do you only incentivize those who get the vaccine? You don’t want to do that,” Shadiack said. “They may have a legitimate basis for [not getting the vaccine]. If you’re denying them that pay or whatever the incentive is, they potentially have a claim under Title VII.”

Instead, some companies are coming up with other ways to incentivize even workers who don’t get the vaccine. “Maybe have them go through training, or watch a video on social distancing. Employers are adopting creative means,” Randall said. “Perhaps providing alternative means for those with sincere objections.”

It’s also important to keep in mind that an incentive that is large may be taxable to the employee. Employers are advised to keep it simple. “A small amount on a gift card, or an hour or two of pay,” Shadiack said. “Something very minor.”

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