Employers grappling with COVID-19’s impact on the workplace may soon be forced to make another tough decision after months of agonizing over layoffs, furloughs and the right strategies to keep their businesses afloat during the pandemic.
The next challenge? Should they require workers to take vaccines?
Some companies concerned about liability issues, health and safety may need to decide whether to force their employees to get vaccinated if they want to continue working or return to the office, experts say.
And some experts are already calling on employers to make it mandatory, which, they say, would generally be legal. But others caution against mandates, saying that they could backfire by making Americans more resistant to a vaccine they’re already concerned about and more likely to embrace anti-vaxxer sentiment.
Three Case Western University professors argued in a recent op-ed for USA TODAY that Americans should be compelled to get vaccinated, saying one option is that “private businesses could refuse to employ or serve unvaccinated individuals.”
Such a requirement could place employers in conflict with their workers, given that more than 1 in 3 Americans say they wouldn’t get a COVID-19 vaccine today even if it were free and approved by the Food and Drug Administration, according to a Gallup poll conducted July 20 through Aug. 2. The most common reason why some Americans are nervous about the vaccine is the speed with which it’s being developed, followed by fears that the risks will outweigh the benefits, according to a Reuters/Ipsos poll conducted May 13-19.
But while requiring workers to get vaccinated could raise ethical issues – should people be forced to get immunized if they have religious, philosophical or personal objections? – some experts say those can be overcome for the sake of protecting everyone.
“It’s very much in keeping with an employer’s responsibility for maintaining the health and wellbeing of its workers to require it,” said Denise Rousseau, professor of organizational behavior and public policy at Carnegie Mellon University’s Heinz College.
Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, has predicted that a vaccine will be available by late 2020 or early 2021. There are dozens of potential vaccines in the works, including ones from drug companies like Pfizer, Moderna, Johnson & Johnson, AstraZeneca, Merck and GlaxoSmithKline.
Dorit Reiss, a law professor at the University of California, Hastings College of the Law, and an expert on vaccine requirements, said she expects certain employers to require the vaccine – potentially including organizations with at-risk workers, such as meat-processing plants and hospitals.
“Legally every employer can require it – you don’t have to be a high-risk employer to require it,” she said. “On one hand, employers will be concerned about pushback from employees. On the other hand, they’ll also be concerned about COVID outbreaks that can be prevented.”
But some vaccine proponents say that requiring workers to get immunized, even if well-intentioned, would be counterproductive.
“Unfortunately when you go straight to a requirement for something, even though you think it’s wonderful, that just does not go over well with a lot of people,” said Kelly Moore, associate director for immunization education for the pro-vaccine Immunization Action Coalition.
She said companies shouldn’t rush to require vaccination quickly after any COVID-19 vaccine is released. Due to the inevitable lack of long-term health data on the vaccine, she said it’s important for employers to follow the guidance of public health professionals as they monitor the impacts and performance of the inoculation.
“The first thing we do with a new vaccine is educate people about it, answer their questions, monitor how it’s accepted and how it works,” she said. “Companies who are trying to do a good thing for their employees will look around and say, ‘What does public health recommend?’ And at this stage a requirement for these vaccines would not be recommended.”
Vaccine requirements not uncommon
To be sure, vaccination requirements aren’t unusual in certain settings. For example, all 50 states require schoolchildren to obtain a certificate of immunization for several vaccines, according to the Immunization Action Coalition, a pro-vaccine advocacy group. Required vaccines included those that prevent tetanus, diphtheria and pertussis (Tdap); polio; chickenpox; and measles, mumps and rubella (MMR). Every state provides exemptions for medical reasons, while some allow exemptions for religious or philosophical reasons.
And most hospitals require workers to get a flu shot every year to help protect themselves and patients. But vaccines for MMR, polio, chickenpox, the flu and other diseases have a long track record of safety that the COVID-19 vaccine won’t have when it is first released.
“It’s certainly not unheard of” for employers to require vaccines, said Bunny Ellerin, director of the Healthcare and Pharmaceutical Management Program at Columbia Business School. “The issue is there are a number of people who are not going to want to take a vaccine. So I think more likely what people are going to do is strongly suggest it.”
Johnny C. Taylor Jr., CEO of the Society for Human Resource Management, an HR professional society, said in a recent Q&A for USA TODAY that “generally speaking,” employers are allowed to impose vaccine mandates.
“For decades, health care and education employers have required employees to take the flu shot and show proof of other major vaccinations – such as those for tetanus, polio or measles – since they are in close contact with vulnerable populations such as children, the elderly and immunocompromised people,” Taylor wrote. “I predict, because of the damage COVID-19 has done to lives and livelihoods, we will see many more employers in other sectors make this a requirement.”
Some exemptions typically apply, including religious reasons. But it’s not necessarily enough for people to express concerns about the health and safety implications of getting vaccinated.
Several government agencies did not comment on potential employer mandates when contacted by USA TODAY for this article. The Department of Labor referred questions to the CDC, which referred questions to the Department of Health and Human Services, home to the FDA, which referred questions to the CDC.
Alternatives to mandates
Instead of requiring vaccination as a condition of employment, employers may take one of several other approaches, experts say. They could:
• Require it to work from the office.
Legally, employers would be required to make reasonable accommodations for workers who refuse to get vaccinated, Reiss said. Such an accommodation could include allowing them to work from home, which millions of Americans are already doing.
• Advocate voluntary inoculation and run vaccination clinics at the workplace.
“Bring folks in to make it easy,” Ellerin said. “Make sure there’s no penalty for taking time off to get it done. Just make it really accessible.”
• Pay for it.
While it’s possible that the federal government will end up picking up the tab, it’s also possible that workers will need to foot part of the bill. Employers should pressure their health care insurance providers to pick up the cost, Ellerin said.
Who might require vaccination?
Health experts say that it’s vital for a critical mass of Americans to get vaccinated for immunizations to begin defeating COVID-19. While a vaccine is unlikely to be 100% effective against contracting COVID-19, it is likely to help prevent many Americans from getting the disease while reducing the severity of the symptoms for many others.
“If we want to decrease deaths, if we want to decrease hospitalizations, if we want to decrease ventilator use, we have to have maximization of the vaccination to be effective,” said Wilbur Chen, chief of the adult clinical studies section at the University of Maryland School of Medicine’s Center for Vaccine Development & Global Health. “At least in those communities that have higher uptake, I’ll expect we’ll have less disease, less cases” and fewer patients who need medical treatment.
While the anti-vaxxer movement has gained currency among some Americans in recent months due to their concerns over how fast the process is moving, Chen said he’s confident in the FDA’s expedited procedures for authorizing COVID-19 vaccines.
“It’s pretty clear that they’re not skipping over anything,” he said. “They want to have efficacy, they want to have safety, they want to have the vaccine examined in diverse parts of the population by gender, by race, by ethnicity. They want to have all ages evaluated.”
That said, experts acknowledge that they won’t have long-term health data for the vaccine until well after it’s been approved for the marketplace.
While most employers will likely spurn mandates, it will be “common sense” for some to require vaccination, such as meat-processing facilities that have experienced outbreaks due to the close proximity of workers in the factory, Ellerin said.
“There will be certain environments I believe where you’ll have no choice. If you’re working next to somebody in a factory, I think it’s pretty obvious that you need to do that,” she said, adding that hospitals are another obvious place.
Some employers should brace for a fight if they decide to impose mandates on their workers.
“On workplace infectious disease exposures, labor has a history of taking the position that employers must offer the vaccine to employees at no cost, but not be mandatory, in order to be safe from workplace exposures associated with their job,” said Rebecca Reindel, safety and health director of the AFL-CIO, a conglomeration of unions, in an email.
She added: “We are supportive of individuals/workers getting vaccinated if the vaccines are demonstrated to be safe and effective. This issue also could be subject to collective bargaining rules and workers’ representatives would address the tradeoffs and procedures involved in such a decision.”
Could mandates backfire?
Officials should focus most of their efforts on educating the public about the need to get vaccinated, rather than imposing mandates, said Immunization Action Coalition advocate Moore, a former director of the Tennessee Immunization Program and a former member of the FDA panel that makes recommendations on vaccine policy.
“I have seen requirements backfire,” she said. “I learned a lot from our experience with the HPV cancer vaccine. It’s really one where well-intentioned efforts at requirements caused a lot of damage to the public’s trust — completely accidentally, without intention but with repercussions we’re still dealing with more than a decade after this vaccine came out.”
That vaccine – which is “unbelievably effective” and “long-lasting,” Moore said – prevents cancers related to HPV.
“But when it was first introduced, a lot of well-intentioned people thought it would be great to require this vaccine immediately because they didn’t want another young girl to face cervical cancer,” she said. “That, unfortunately, became a political football. People began questioning immediately, ‘Why are you requiring me to take something I don’t understand?’”
In her home state of Tennessee, legislators responded to talk of a mandate by introducing a bill that would have prohibited health authorities from requiring a vaccine without a vote of the legislature. Moore said that requirements can be helpful, but usually only when there’s a small percentage of holdouts.
“In my experience, requirements must be used judiciously and only in concert with broad public acceptance,” she said.
She said she “can’t imagine” employers requiring vaccination until long-term data is available on a COVID-19 vaccine and the FDA provides full licensure, not just emergency authorization, which is likely the first step to launch distribution.
Still, employers legally don’t have to wait for full licensure to require vaccination, said Reiss, the UC Hastings expert on vaccine law. They must make exceptions for people for medical reasons. And they must make accommodations for people with religious objections, but not if doing so would “create a direct threat” to other employees or customers, Reiss said. She noted that COVID-19 could be an example of a crisis in which religious exemptions may not be tolerated.
“What courts are looking for is a good faith effort to work something out” when objections arise, she said. “You have to show an effort to find a solution.”
But if the effort would impose “undue costs,” the employer can maintain the requirement, she said.
“Ethically you can say that high-risk employment places may have an obligation and certainly have a very good justification for imposing such a mandate,” she said.
