The announcement that effective COVID-19 vaccines had been developed was cause for both celebration and relief. But with vaccine rollouts well underway, companies around the world are now facing a dilemma: whether or not to mandate that current employees and new hires get the vaccine before returning to the workplace.
Some employers are already taking a stand on this matter. Last week, Delta Air Lines became the first major U.S. employer to require new hires to have the vaccine. One restaurant in New York reportedly terminated a staff member who refused to get the vaccine until more research is done into its effects on fertility, while another NYC eatery added vaccination to the list of requirements in a recent job description. But many more businesses are currently weighing up their options, while others may not have given serious thought to it yet.
Whatever stage you’re at in developing your return-to-workplace plan, now is the time to start thinking about the role vaccines will play in it — because employees will have questions. There are no easy answers, but there are some key considerations that can guide the planning process and help you do what’s best for your company, employees, and everyone else they interact with at work.
Varying local guidelines and company tolerances around liability will make a one-size-fits-all approach impossible
Lingering uncertainty and unease around legality and liability are holding many companies back from making a firm decision about mandating vaccines. In a survey of 1,800 in-house lawyers, HR professionals, and C-suite executives in the United States, employment and labor law practice Littler found that 43% of respondents say their company hasn’t ruled out vaccine mandates altogether, but 64% are concerned about legal liability in the event that an employee has an adverse reaction to a vaccine they’ve been required to get. What’s more, almost half (47%) said they would like the states or municipalities they operate in to make the decision for them about whether to make vaccines mandatory, with only 30% saying they don’t want this.
In the absence of a clear-cut mandate or ban from relevant government bodies, companies will have to explore what local guidelines and laws exist, assess their liability, and make a decision accordingly. This is complicated by the fact that legality may vary dramatically from location to location and may change as the situation evolves.
In the United States, for example, the Equal Employment Opportunity Commission put out guidelines in December that do not prohibit employers from mandating vaccines, so long as their policy complies with the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and other workplace laws. Legal experts note that this is true even before COVID-19 vaccines get full approval from the Food and Drug Administration (they are currently conditionally approved for emergency use). There is also a precedent for mandatory vaccinations: As far back as 1905, the U.S. Supreme Court ruled in a state’s favor after it tried to enforce smallpox vaccinations during an epidemic. That said, some states are already working to advance bills or enact laws that would ban vaccination as a condition of employment (with the exception of some medical jobs), so companies will have to pay close attention to these developments.
But the situation in the U.S. is far from universal. Lawyers in many countries — including the Philippines, Spain, and Uruguay — have stated that employers are not currently entitled to make COVID-19 vaccination a compulsory requirement for most jobs. Others, such as those in Peru, note that their government has yet to issue any regulations that would prevent employers from implementing and enforcing a vaccination policy.
With so much variation at play, consulting with local experts will likely be necessary before crafting a policy, especially for multinational organizations that will have to tailor their policy in different regions. This will include understanding what counts as a reasonable accommodation, since even if a mandate is put in place, some employees (like those with valid health concerns) will necessarily have to be excluded. Employers will also have to take regional data protection laws (like HIPAA in the United States and GDPR in the European Union) into account, since mandating a vaccine will require asking about and storing sensitive employee medical data.
After understanding what their options are, the next step will be assessing liability. In an article for The Guardian, Claude Schoenberg, a Pennsylvania-based employment attorney, recommends that companies contact their insurance brokers to evaluate their current coverage. “You need to know what protection you might have,” he says, “in case an employee suffers an adverse reaction to a mandated COVID vaccine. You should consider whether that amount of insurance protection is sufficient.”
Offering incentives and improving access may be an alternative to mandates — at least at first
There’s an old saying that you can attract more bees with honey than vinegar. While a mandate isn’t exactly vinegar (at least, in many people’s eyes), some experts suggest that companies should lead with honey — sweetening the deal to encourage voluntary vaccinations.
For example, Brett Coburn, an Atlanta-based attorney, told SHRM that employers “may wish to focus on steps they can take to encourage and incentivize employees to get vaccinated,” such as offering a small cash bonus. Some companies are already taking this approach: global advisory firm Willis Towers Watson found that two in 10 employers surveyed are offering incentives to get vaccinated, and another 29% are considering doing so.
American Airlines gave vaccinated employees an extra day off and $50 in the company’s employee recognition program. Publix Super Markets, a grocery chain in the southern United States, is giving its workers $125 gift cards after they’ve been vaccinated; Kroger, another U.S. grocery group, is giving its vaccinated employees a $100 bonus. The German grocer Edeka Nord offered its workforce $60 gift cards for use at its stores.
Experts also suggest making it as easy as possible for employers to get vaccinated. Willis Towers Watson noted that many companies are partnering with local pharmacies or are exploring ways to offer vaccinations onsite. Delta, for example, created a vaccine center in February and offers shots to employees as well as their friends and families. Others are offering paid time off for employees to get vaccinated and recover from any potential side effects, which may help alleviate any anxieties employees have around loss of income. McKinsey & Company also recommends encouraging leaders, managers, and employees to share their vaccination stories and serve as role models and ambassadors to create confidence and answer any questions people may have.
Enforcing a policy unequally could lead to accusations of unfairness
Even after offering incentives and providing encouragement, some employees (and future hires) may still feel hesitant or refuse to get the vaccine. At that point, companies may have to revisit the question of a mandate and consider what could happen if they don’t put one in place. Not only could employees who refuse to get vaccinated get sick, meaning they wouldn’t be able to come into the workplace for at least two weeks, but other employees and customers might feel uncomfortable or at risk being around them — especially those who are unable to get vaccinated themselves.
For companies that do create a formal policy mandating vaccines, the extent to which they enforce the policy may come under close scrutiny. Brett Coburn points out that if a significant portion of the workforce objects to vaccination, employers will be faced with the difficult decision of whether they should terminate everyone who doesn’t comply. But if they enforce the rule in some instances but not others, the risk of being sued for discrimination increases.
That said, depending on the circumstances in each region, policies will need to be flexible enough to account for the fact that some employees may be physically unable to get vaccinated by the time the mandate goes into effect. In the United States, for example, everyone over the age of 16 is now eligible. But in Scotland, only those aged 40 and over (or in a priority group) can currently get a first-dose appointment — and in Costa Rica, only health workers and people over the age of 70 are eligible. By putting a rigid policy in place too soon, companies could inadvertently bar great candidates from applying to jobs or put current employees in an impossible situation.
Final thoughts: Start asking relevant questions, even if you can’t find answers just yet
As many have pointed out over the past year, this situation is unprecedented, so it’s understandable that companies are uncertain about how to approach the next step.
While rushing to put policies in place could lead to backlash and other unwanted results, you may want to at least start thinking through important questions, even if all the answers aren’t available yet. Taking the time to understand the various challenges involved in creating a vaccine policy and possible complications that could arise will make it easier to navigate the big decision when it’s time to make one — while giving employees confidence that you’re approaching this situation with the thought and care it deserves.