This post is another in our series of pandemic-related news updates and focuses on vaccine mandates and related news for employers and HR directors.
It’s been another tough pandemic year for employers. The hopes we had for a return to the workplace with vaccines hit a few roadblocks: first, the emergence of the highly contagious Delta variant, and second, a disappointing uptake on the part of a sizeable minority to get vaccinated. A high vaccination rate is essential in preventing surges in infection, as well as in preventing new variants from emerging.
Many workplaces that opened earlier in the year have been frustrated by repeated closures due to infections among staff. Plus, many workers are reluctant to return to a workplace if they don’t feel safe. Many large employers have either adopted hybrid models or have pushed office reopening off – anywhere from weeks to months. See: Why You Might Not Be Returning to the Office Until Next Year;
“In addition to Uber, companies including Google, Amazon, Apple and Starbucks have said they will postpone their return dates to next year. Executives say their rationale for the long delay is twofold: In addition to wanting to keep employees out of harm’s way, they are seeking an end to the roller coaster of anticipated return dates and further delays. The fits and starts make it difficult for employees to plan, and the hope is that a far-off return date will not need to be adjusted yet again.”
To increase vaccination rates which are so critical to any return to normalcy, employers and governmental bodies have enacted a variety of measures and policies to try to increase the vaccination rate among workers. These include:
- Many employers adopted incentives, penalties, mandatory vaccination policies, or some combination of these strategies to increase employee vaccination rates. While many incentives are still being offered, Businessweek notes that Business Is Using Less Carrot and More Stick on Vaccinations. And in that vein, see Human Resource Executive: Surcharges for the unvaccinated: Will interest grow?
- Many states, municipalities, and federal bureaus have adopted mandatory vaccination policies. See Littler: Mandatory Employee Vaccines (federal and state breakdown), which is frequently updated.
- The federal government instituted mandatory vaccination policies for the more than 4 million Americans that it employs, as well as for federal contractors. (See: The Safer Federal Workforce Task Force Publishes its Federal Contractor and Subcontractor Guidance) In addition, this mandate will apply to employees of the executive branch, including the White House and all federal agencies and members of the armed services.
- The Occupational Safety and Health Administration (OSHA) is preparing a vaccine-or-test mandate for employers with 100+ employees. It is expected to be issued in the fall, but the administration is encouraging employers to get out ahead of the mandate. It is expected to boost the number of vaccinated people by 12 million. Insurance Journal reports that 1 in 4 Large Firms Has Vaccine Mandate for Employees, With More Coming, according to a survey from Gartner. This is up from 16% pre-mandate, and the survey shows another 13% of companies plan to put a mandate in place. Related: NBC News: From McDonald’s to Goldman Sachs, here are the companies mandating vaccines for all or some employees – (updated September 23)
To help you understand how these initiatives are faring, to learn more about any obligations you may have, and to offer information that will help you formulate your own approach and policies, we offer updates on many of these initiatives.
Are employment-related vaccine mandates working?
When faced with the choice of a vaccination or a paycheck, most employees are opting for the paycheck. Here’s a sampling of some of the results.
- New York Times: ‘Mandates Are Working’: Employer Ultimatums Lift Vaccination Rates, So Far – In California and New York, where mandates for health care workers have gone into effect, many are complying.
- Human Resource Executive: What role do culture and morale play in vaccine mandates? – While more organizations are considering mandates, they’re not doing so without worry, according to a new survey [by Littler]. Employer hesitance revolves around potential resistance from employees who are not in a protected category but refuse to be vaccinated (75%); fears of the impact of a mandate on company culture and employee morale (68%); being worried about keeping employees happy in today’s tight labor market (60%).
- NY Times: After Mandate, 91% of Tyson Workers Are Vaccinated – this is up from about 50% at the time of the mandate.
- Forbes: 99.5% of the 67,000 U.S.-based United Airlines employees are now vaccinated against Covid-19. There are about 300 employees who face termination if they do not comply.
- NY Times: N.Y.C. Schools’ Vaccine Mandate Is in Place. 96% of Teachers Got a Shot
- AP: Employer vaccine mandates convert some workers, but not all
- Harford Courant: After imposing vaccine mandates, Connecticut colleges and universities seeing few COVID-19 cases
Are employer vaccine mandates legal?
While early results show that most employees accept vaccination in the face of potential terminations, many have joined forces to unite in challenging the legality of these mandates. Are legal challenges to employer mandates likely to win? Here’s a sampling of legal opinions and cases that have hit the courts already.
- SHRM: Supreme Court Denies Review of Indiana University’s COVID-19 Vaccine Mandate – The U.S. Supreme Court has denied review of Indiana University’s COVID-19 vaccine mandate for employees and students, leaving in place the rulings of lower courts in favor of the university’s requirements. We’ve gathered articles on the news from SHRM Online and other media outlets.
- Reuters: U.S. court upholds hospital employee COVID-19 vaccine rule in test case – St. Elizabeth Healthcare, OH
- JDSupra: Federal Court Upholds Hospital’s COVID-19 Vaccination Mandate – Houston Methodist Hospital, TX
- US News: Panel of Judges Upholds New York City’s Vaccine Mandate for Educators
- Ohio Employer Law Blog: Here is why the vaccination ETS that Biden has directed OSHA to issue is likely illegal
- AP: EXPLAINER: Employers have legal right to mandate COVID shots
- New York Times: Yes, Your Employer Can Require You to Be Vaccinated
Employer guidance and helpful resources:
- EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws – esp. see section on Covid-19 vaccines
- Littler: Bouncing Back (and Forth): Statewide Reopening and Mitigation Steps (frequently updated)
- Human Resource Executive: 9 tips for telling workers about your new vaccine mandate
- Human Resource Executive: 5 ways to get ahead of Biden’s new employer vaccine mandate
Prior HR Web Cafe related posts: