Getting Back to the Workplace: Can Employers Mandate Vaccinations?

Photo by CDC on Unsplash

This is Part I in the new series, “Getting Back to the Workplace” — a guide for businesses emerging from COVID-19 pandemic restrictions. Let’s talk about vaccines and work.

Check back soon for Part II in the series, Work From Home Policies After the Pandemic.

With the post-holiday surge in COVID-19 infections on the decline and state-level vaccine operations sputtering to life, many employers are now planning ahead for the return of workers across industries. But how do businesses welcome back staff in a manner that is safe, efficient and fair?

Most of us are eager to get back to something that looks like a normal workday at the end of 2019. White collar workers have been able to carry on working throughout the pandemic using technology like Zoom and Dropbox, while blue-collar workers and customer-facing personnel have phased back into the workplace over the last 10 months. In some industries, like higher education, comprehensive surveillance testing has enabled the return to in-person services while minimizing the spread of infection — but these expensive systems are unsustainable over the long term. In other industries, most notably restaurants, the disruptions caused by positive cases in the workplace or quarantine orders due to possible exposure have sewn chaos for businesses already suffering steep declines in revenue.

Employers quickly enacted and amended work from home policies last spring, largely guided by the federal government and state agencies with an eye toward preventing infections across the population and protecting those most vulnerable from prolonged exposure to risk. Work-from-home works for some — a growing number of employers like the Boston-based technology company Drift are announcing plans to remain an all-remote workforce after the pandemic ends. On the other hand, some employers are ready to amend those policies and narrow the scope of workers permitted to work outside the office. Part II of this series will help employers think through post-pandemic work from home policies.

Before employees can return to the workplace, they must be ready to return. Thus begins the long march in the vaccination line. Businesses need to decide now whether to mandate vaccines for staff, or to approach the problem with an element of behavioral economics: solutions that mix incentives or disincentives to move a workforce toward vaccines and immunity.

The US Equal Employment Opportunity Commission has issued guidance permitting employers to mandate vaccination as a condition of employment. However, the guidance does not absolve employers from compliance with a complicated compliance landscape that may trigger medical or religious exemptions or collective bargaining obligations for workers.

Moreover, people have generally been reluctant to return to their pre-pandemic routines despite mask requirements, social distancing measures, testing regimens and sanitary protocols across workplaces and public facilities. Anxiety is real, and it has not only kept some from returning to the workplace — but when properly diagnosed it can protect workers as a bona fide medical condition under the Americans with Disabilities Act (ADA).

For a certain segment of the population, anxiety will only increase with the introduction of a vaccine mandate. A December 2020 survey by the Kaiser Family Foundation found that 71% of the population would take a free and available COVID-19 vaccine (up 8% from a similar survey in September). Despite this positive trend, initial rollout has seen hiccups in the medical community where vaccine acceptance had been presumed to be a given. That leaves considerable uncertainty for more than a quarter of the workforce, which can wreak havoc for employers planning for operations in future quarters.

At the same time, pregnant workers and those with certain medical conditions may also see protections under the ADA and other laws, while Title VII of the Civil Rights Act protects individual religious objections.

What should businesses do? There are no cure-alls for returning to pre-pandemic operations. Employers must anticipate further government guidance, staff anxiety about vaccines and the workplace generally, and where customers fit in to a strategy. Here are a few considerations:

  1. Blanket, state-level mandates are unlikely. Some governments have mandated vaccine programs, including last year’s flu vaccine mandate in Massachusetts for educators in child care centers through universities (which was recently lifted due to the mild flu season), but those have often been limited by industry and the political climate makes a blanket mandate unlikely.
  2. The Carrot. Incentives may make employees happy, but often those who take a vaccine in exchange for a cash or time off bonus would have done so in any case. A morale boost can certainly be a good thing after our year of collective suffering, but employer should focus on systems that encourage workers to get comfortable with the idea of returning to the office, the classroom, and the shop floor — rather than accept an economic trade-off.
  3. The Stick. Thinking critically about a system of workplace conditions for those that have and have not been vaccinated may provide the necessary prompt for employees to get their shots. For those that may decline vaccinations, and for which working from home is not an option, requiring continued mask usage (beyond local government minimums), designated workspaces, and restrictions on access to congregate spaces (think: the breakroom and the water cooler), may help ease unvaccinated workers back into the workplace. Employers can also mandate training to educate uneasy workers on the relative safety and benefits of vaccination.
  4. What about the customers? These policy solutions focus on getting workers back to serve customers, but employers must also consider rules for customers and other visitors as a further strategy aimed at ensuring employee safety and reducing workplace transmission. Australian airline Qantas has signaled its intention to require proof of vaccination for all travelers by mid-2021. Closer to home, colleges and universities are searching for direct supply lines to begin delivery of student vaccines later this spring, with an eye toward mandatory requirements for in-person learning by the fall return to campus.

Employers should begin drafting their vaccination policies now in order to be prepared for the post-pandemic return to the workplace. Businesses must take care to articulate a non-discriminatory rationale for treating vaccinated and unvaccinated workers differently in an organization, and leaders should consult with counsel, experienced health care professionals and human resources executives to ensure that the return to the workplace is safe, efficient and fair. Finally, and especially in our current cultural climate, employers should be sensitive to the historic ethnic and racial disparities in access to medicine — and the corresponding legacy of mistrust — when drafting a vaccine protocol for a modern and diverse workforce.

Michael Loconto is a Boston-based attorney and consultant, and can help your business think through post-pandemic workforce strategies. Keep an eye out for Part II in the Getting Back to the Workplace series soon — we will talk about strategies to adjust your post-pandemic work from home policy. If you like what you read, follow Mike on Medium and subscribe through Substack.

Boston, MA attorney and consultant specializing in labor and employment law, dispute resolution and government relations.