As Wisconsin health care systems begin to administer the COVID-19 vaccine to their frontline workers this week, employers are preparing for a wider vaccine rollout when supplies become available for their employees in 2021.
Many are contemplating how to encourage widespread inoculation, including possible company-wide vaccination mandates.
Can workplaces require the vaccine? Attorneys say the short answer is yes, with some exceptions.
But it’s more likely employers will use a lighter touch by incentivizing – rather than mandating – employees to get vaccinated, they say.
“I think employers are going to take a more measured approach here,” said Erik Eisenmann, a partner with Husch Blackwell and chair of the firm's labor and employment practice. “I think it’s going to be very rare or unique to find an employer who is actually mandating this or requiring this as a condition of employment right out of the gate.”
According to a recent survey by Waukesha-based employer association MRA, just 5% of employer respondents said they were exploring whether they can mandate the COVID-19 vaccine in the future.
Eisenmann said employers are more likely to strongly encourage employee vaccinations by providing them onsite, offering financial incentives for employees who get the vaccine, or barring employees' return to the office until they do.
“You'll see employers exhaust their list of ways to try to incentivize employees before they pivot to that scenario where they are actually going to require it,” he said. “Because it's at that stage of requiring it where you start creating that risk of these claims from employees or frankly even the negative press articles."
The MRA poll found 15% of employers plan to offer onsite COVID vaccine clinics when they are able; 48% currently offer onsite flu vaccine clinics.
The Equal Employment Opportunity Commission has not yet weighed in with specific guidance for employers as it relates to the COVID-19 vaccine, but precedent from the annual flu vaccine and previous pandemics sheds some light on the issue.
Private employers can require the COVID-19 vaccine as a condition of employment with two exceptions: for employees who have a disability or medical complication with receiving the vaccine, or those with sincerely held religious beliefs that prevent them from getting vaccinated, said Dan Kaplan, partner and litigation attorney with Foley & Lardner LLP.
Employers are required to provide a reasonable accommodation for employees who fall into either of those two categories. That could look like requiring them to wear face masks or other protective gear, or continue working from home, if their job allows, Kaplan said.
The reasonableness of those accommodations is somewhat of a gray area, said Eisenmann.
“The last time the EEOC addressed this issue was back in the 2009 timeframe when we were dealing with the H1N1 flu issue and there … it suggested that in the instance of a pandemic, which we’re certainly in right now, the employer has a lower burden to accommodate, so there will be some questions about whether an employer in the current situation is required to grant these alternative accommodations to someone who can’t or is unwilling to get the vaccine,” he said.
For employees with religious objections to being vaccinated, the law puts less of a burden on employers to make accommodations than for employees with disabilities.
“On the disability side, the duty to accommodate exists unless that accommodation would cause an undue hardship; whereas on the religious side, the duty to accommodate is limited to the point if it would create (more than a minimal) burden,” Kaplan said.
The religious exemption is fairly narrow, applying only to those with bona fide religious objections – not ethical or safety concerns.
“There will probably be fewer instances where an employer has to allow somebody to opt out because of a religious issue,” Eisenmann said.
However, Eisenmann said that framework could be widened if the Supreme Court were to take up the issue.
“With the appointment and confirmation of Amy Coney Barrett, we’ve started to see the U.S. Supreme Court starting to take a more expansive view of religious freedom,” he said. “So, I could envision a scenario where we see a court case in 2021 that suggests that an employer has a heightened duty to accommodate a bona fide religious objection and maybe limits the employer’s ability to push back.”
Studies indicate there is rising confidence among the general public in Pfizer's recently authorized vaccine and other prospective COVID-19 vaccines. However, Pew Research Center’s most recent poll showed 21% of U.S. adults don’t intend to get vaccinated. The study, published Dec. 3, found 60% of Americans say they would definitely or probably get vaccinated, up from 51% who said the same in September.
Another poll, published Monday by ABCNews/Ipsos, found 40% of respondents say they will get the vaccine as soon as it is available, while 44% said they will wait a bit (with 52% of minority respondents saying the same).
Fewer than one in five (15%) said they will never get the vaccine, with 26% of Republican respondents saying the same.
A COVID plan recently introduced by Wisconsin Assembly Speaker Robin Vos includes a clause that would allow employees to opt out of a vaccine mandate based on their own concerns, religious or otherwise. While that plan hasn't gained much support from state lawmakers, it shows the political momentum behind protecting vaccination objectors, Eisenmann said.
“There is some political support behind this idea that requiring a vaccination is infringing on an individual’s personal liberty. But, on balance, society is still taking the position that the need to sort of embrace these technological advances that are finally going to get us out of this outweigh whatever personal liberty issue exists out there,” Eisenmann said.
In the short-term, implementing a mandatory vaccination program poses logistical challenges.
“I think a little of the hesitation for mandating currently is just the unknown,” Kaplan said. “I also think from a practical standpoint, it’s going to be next to impossible to have a mandatory vaccination program for a lot of employers because there’s not going to be sufficient vaccination material to follow through on that.”
Employers should also consider how a mandatory vaccination program could hamper employee recruitment and retention efforts. Those who don’t want to get vaccinated could leave their company for a competitor who doesn’t have a requirement in place.
“Are you really going to take the chance that you’re going to lose potentially valuable employees who do not want to get the vaccination?” Kaplan said. “…Can I afford to lose those employees?”
However, in an effort to win back confidence, customer-facing businesses could begin instituting vaccine mandates among their employees and leverage it as a marketing strategy, Eisenmann said.
"Especially in the early days, when I think about where I want to go to have my first inside meal in 12 months, I might choose the restaurant that says 'all of our staff have been vaccinated.' That may make me feel more comfortable," he said.
