Many employers caught between the vaccine and a hard place

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Vaccine mandates are becoming more popular among large corporations and small businesses alike. But one in five Americans remain vaccine-resistant.

What is an employer to do?

Luke Wright, a partner at Harter Secrest & Emery LLP who practices in the area of labor and employment, said one of the questions clients are asking themselves and their attorneys is what should we do about vaccines, should we consider mandating them?

That question is quickly followed by “if we’re not going to mandate them, should we be asking people if they are vaccinated and/or should we be requiring them to demonstrate vaccination status by showing their card or the Excelsior Pass or something else.

“The answers there, generally speaking, are you can require it, is what the court decisions have been saying and what the various administrative agencies have been saying, including the EEOC. You can require it as long as you’re providing potential exemptions for medical or religious reasons,” Wright said. “But I think the main concern that employers often have there is the employee relations issue and perception.”

Additionally, the tight labor market is cause for concern among many businesses.

“If X percent of people are unvaccinated or are unwilling to be vaccinated, depending on the person’s position and ambitions, it could be really easy to leave a job that would require you to be vaccinated and find a comparable job that doesn’t,” Wright added.

That could wreak havoc on companies that already are stretched thin.

“Employers certainly are nervous about risking losing a large swath of the workforce or creating a PR issue,” Wright said. “And then almost cutting of their nose to spite their face, ending up in a tougher situation.”

Some of the nation’s largest employers are asking workers to get vaccinated against COVID-19, including the federal government, Walmart Inc., Microsoft Corp. and Google LLC.

“Workers are pushing back on coming back into the office in-person and many companies are having trouble finding workers, especially for in-person roles,” said Andrew Challenger, senior vice president of global outplacement and executive coaching for Challenger, Gray & Christmas. “Knowing their colleagues are vaccinated may give many significant peace of mind and bring some people back to the workforce.”

A recent survey from Challenger, Gray & Christmas shows that employees also are pushing back against the mandates. Legal challenges to vaccine mandates have not survived in courts. The 7th Circuit Court of Appeals recently ruled that a mandate implemented by Indiana University did not infringe any constitutional rights. The university’s mandate made exemptions for religious and health reasons, but those who do not receive the shot are required to mask and get tested regularly, Challenger, Gray & Christmas noted.

“You’re definitely allowed to ask about vaccination status as an employer. Where you could get in trouble is sharing that information that comes in response or following up with, oh you’re not vaccinated, why not?” Wright said. “That inquiry can start turning into a discussion about medical related things that, unless you have a valid reason, you shouldn’t be asking. With the proof of vaccination, you also are allowed in this state to ask for people to provide documentation of their vaccination status. You’d have to maintain it as confidential medical information.”

A recent Gallup poll found that 18 percent of Americans would not agree to be vaccinated and were unlikely to change their mind about it. The percentage of Americans vaccinated has changed little since mid-May when 64 percent had been vaccinated and 12 percent planned to. Some 18 percent of those who haven’t been vaccinated say they want to wait to ensure the vaccine is safe, while 18 percent say they don’t trust vaccines in general. Another 18 percent said they already had COVID-19 and have antibodies to the disease.

Still, worries about contracting COVID-19 are on the rise because of the delta variant. A June Gallup poll showed that 89 percent of Americans believed that the pandemic was getting better. By the end of July, just 40 percent believed it was getting better. So it might be understandable that as employers consider bringing their staffs back to the office, they are strongly encouraging or mandating that employees be vaccinated.

“One approach that seems to be a viable one is to say, whatever our rules regarding vaccinated and unvaccinated are, if you are vaccinated and you’re comfortable sharing that information with us, then if you show us a copy of the documentation then this set of rules applies to you. If you’re not vaccinated or you’re not comfortable sharing, then this set of safety rules will apply,” Wright suggested. “That’s one approach that may work for some employers.”

New York state has a mandate that all private employers adopt an airborne infectious disease exposure prevention plan. The New York Health and Essential Rights Act (HERO Act) is designed to protect employees against exposure and disease during a future airborne infectious disease outbreak. The state Department of Labor has published model plans that certain industries can use.

“That’s something that employers are working through right now, getting those plans in place as well for the next situation, which could even be this situation,” Wright said.

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