Vaccines and the Workplace: What Employers Need to Know

In President Biden’s first prime-time address to the nation last week, he promised all adults would be eligible for Covid-19 vaccines by May 1, with a semblance of normalcy possible by July 4th. As hope sprouts like daffodils about an end to the pandemic, employers around the U.S. are beginning to make decisions about vaccines and their role in bringing employees back to offices and other workplaces.

Right now, questions abound. In December, the U.S. Equal Employment Opportunity Commission (EEOC) confirmed that companies can require employees to be vaccinated–but should they? If companies instead encourage or incentivize vaccination, what could that look like? What components go into a workplace vaccination policy?

It will be crucial over the next few months for employers to answer these questions in anticipation of wide-scale vaccine availability. “Companies should absolutely be preparing,” Ashley Hirano, senior associate in the law firm Sheppard Mullin’s Labor and Employment Practice Group, told From Day One. “If companies want to make it mandatory, want to strongly encourage it, or make it easy to get–companies should be thinking through where they’re leaning.” From Day One compiled answers to workplace vaccination questions growing in urgency and importance:

What’s the first step a company should take? In a recent webinar hosted by the Baumhart Center for Social Enterprise & Responsibility at Loyola University Chicago, experts outlined how workplaces should establish their policy on vaccinations. “Find out from your employees what they want to know,” suggested Colleen Clark, senior design strategist for the Institute for Healthcare Delivery Design. Jessica Brown, a partner in the Denver office of law firm Gibson Dunn, said that some employers are distributing anonymous surveys to see whether their employees are likely to accept vaccinations when they’re eligible.

This early work will help employers understand hesitations that workers might feel about receiving the vaccine and their questions about issues like vaccine eligibility, consent forms, and other safety measures being considered for offices. Employers should establish a designated place to go with their questions or concerns. As part of that process, Clark said, employers should ask employees how they’d like to receive the desired information and who they would like the information to come from.

Cláudia Schwartz, president of the consulting firm HR Results in San Diego, said that employers would be wise to build up their resources and expertise on these issues. HR departments should have “specialized training in answering questions, triaging issues, engaging in the interactive process.” No stone should be left unturned, she said. Companies should consider accommodations for needs related to disability or religious belief, the transfer of employees to positions with lower exposure and lower need for vaccination, and the handling of exposure notices.

Can companies legally require employees to be vaccinated? As Brown told From Day One: “The most frequently asked questions have been: ‘Can we mandate the vaccine?’ and then–because the answer to that question is generally, ‘Yes, you can, subject to reasonable accommodation requirements under the Americans with Disabilities Act and Title VII’–Should we mandate the vaccine?” That December guidance from the EEOC, which enforces federal nondiscrimination laws in the workplace, said that not only can employers ask their employees whether they have been vaccinated, they can request proof of vaccination.

What are the risks for employers to keep in mind with a vaccine requirement? Hirano suggests that companies should work closely with their legal counsel in determining policies around vaccinations and returns to the workplace. “There’s always risk and benefit to any path you choose–and who knows what the legal landscape will look like this summer and next year?,” she said. In making these decisions, companies should focus on business risk over legal risk, said Nadia Sawicki, co-director of the Beazley Institute for Health Law and Policy at Loyola University Chicago. In other words: How would employees react to a vaccine mandate? How would customers and clients react if there is no mandate? Regarding the legal risks, Sawicki said: “If an employer chooses to mandate the Covid-19 vaccine and complies with the requirements for medical and religious exemptions and confidentiality provisions, at this point the risk seems limited.” On the other hand, “If a business doesn’t require employees to be vaccinated, but engages in other measures to protect employees and clients from Covid-19,” Sawicki added, “There seems to be minimal risk of liability.”

In actual practice, are companies requiring vaccination? As company leaders decide where they stand on the issue, there’s plenty of debate about what to do. Political scientist Katie Attwell and professor of bioethics Mark Navin wrote a New York Times op-ed arguing that vaccine mandates should be set by the U.S. government, not the companies themselves. In a survey released last month, just 0.5% of employers said they currently require coronavirus vaccinations for all employees, and only 6% said they will require it once it vaccines are widely available and/or fully approved by the federal Food and Drug Administration. “By and large, companies either came out against vaccine mandates or said they were undecided: 48% said they would not require employees to get vaccinated, and 43% said they were unsure and still weighing the possibility,” MarketWatch reported. “Most do not seem to be mandating the vaccine and instead are strongly encouraging it–but it depends on the industry,” Brown said. Employer pressure to get vaccinated is likely to grow as the vaccine becomes more available, Hirano believes.

In some workplaces across the U.S., reported ABC News, employees have quit over vaccine requirements. This offers a hint of a workplace battle that is unlikely to fade away. As attorney Matt Murphy told ABC: "I think we're going to see endless litigation over this issue … everything Covid-related is messy. I think this is going to go on for years."

What can a company do to encourage vaccination? If a company declines to make vaccinations mandatory, there are still many courses of action to encourage employees to get the vaccine. In these early stages, Brown said, companies are weighing ways to reduce barriers to vaccination, such as providing the vaccine onsite through a third-party provider; allowing employees time off to be vaccinated or to recover from side effects; and paying for any administrative fee that an employee’s insurance may not cover.

Some employers are offering incentives, according to Hirano, like paid time off and even bonuses. Other companies are working closely with local government to stay up-to-date on vaccination rollouts that can be quickly communicated to employees.

Embracing the tenets of behavioral economics, three experts suggested in Harvard Business Review a dozen ways employers could begin reducing vaccine hesitancy. Among them: use social networks as a communication tool, make vaccination as easy as possible for employees, don’t mandate vaccines before they are widely available, and avoid overwhelming employees with too much information or complex decision-making.

What other components should a company consider for a safe workplace? Vaccination can’t be the whole solution as employees return to the office. The federal Occupational Safety and Health Administration has released guidelines on preparing workplaces for Covid-19, and it emphasized that workplaces should still encourage basic infection-prevention measures, like frequent hand washing and respiratory etiquette, alongside generous sick policies that encourage employees to stay home if they feel unwell. Companies can continue to keep capacity low inside offices by maintaining flexible remote and work-from-home policies. And they should develop procedures to identify and isolate Covid-19 cases as long as it remains a risk.

Will things change? In a word: yes. Much is still unknown about the Covid-19 virus and its variants, the vaccine rollout is still underway, and public sentiment is ever-evolving. Dr. Leana Wen, a public-health professor at George Washington University, told the New York Times that the president’s optimism about July 4^th may be undermined by people she calls “vaccine complacent,” who just don’t see the need to get vaccinated. “They’re not antivaccine. It’s not that they have some kind of philosophical issue against the vaccine,” she said. “It’s that they may not quite see what’s in it for them.”

Employment experts advise companies to prepare for the unexpected and keep communication open with employees while navigating changing safety guidelines. “Whether mandating or encouraging vaccination, companies will want to develop clear communications to explain their policy and dispel myths about the vaccines to reduce vaccine hesitancy and ensure that accurate information is being disseminated,” said Brown. “They also will want to prepare for hard conversations and disagreements in the workplace, since these issues have been politicized and therefore may be polarizing.”

“EEOC and Centers for Disease Control guidance one day is not necessary going to be the guidance another day,” as Hirano put it. “I would encourage companies to remain flexible and be ready to pivot as they have, I’m sure, all year.”

Emily Nonko is a Brooklyn, NY-based reporter who writes about real estate, architecture, urbanism and design. Her work has appeared in the Wall Street Journal, New York magazine, Curbed and other publications. Adam Pearson, From Day One's winter intern, is a communication and journalism major at the University of Wisconsin-Eau Claire, as well as host and producer of Blugold Radio Sunday.