As American companies prepare to bring large numbers of workers back to the office in the coming months, executives face one of their most delicate decisions related to pandemics: should they require employees to be vaccinated?
Take the case of United Airlines. In January, CEO Scott Kirby announced in a company town hall that he would require all of its 96,000 or so employees to receive coronavirus vaccines as soon as they become widely available.
"I think it's the right thing," Kirby said before asking other companies to follow suit.
It's been four months. No major airline has made a similar promise – and United Airlines is waffling.
"It's still something we think about, but no final decisions have been made," said a spokeswoman, Leslie Scott.
For the largest companies in the country, mandatory vaccinations would protect service workers and reduce fear of office workers returning. This includes those who have been vaccinated but may be reluctant to return without knowing if their colleagues did too. And there is an element of public service: the herd immunity target has fallen as the pace of vaccinations has slowed.
However, the mandatory vaccination could spell a backlash and possibly even litigation for those who see it as an invasion of privacy and a Big Brother-like move to control the lives of employees.
In surveys, managers show willingness to request vaccinations. In a survey of 1,339 employers conducted by Arizona State University's College of Health Solutions and funded by the Rockefeller Foundation, 44 percent of US respondents said they wanted to require vaccinations for their companies. In a separate survey of 446 employers conducted by Willis Towers Watson, a risk management company, 23 percent of respondents said they "plan or consider having employees vaccinated before they can return to the site."
That discrepancy, said Mara Aspinall, who led the survey in the state of Arizona, may have to do with the timing of the surveys and the pace at which executives are comfortable with the vaccines. The State of Arizona conducted its survey in March, while Willis Towers conducted the survey between February 23 and March 12.
Despite the surveys, few executives have taken the step to prescribe vaccines. It seems that most hope that encouragement, whether powerful or subtle, will be enough.
"While legally in the United States, employers can prescribe vaccines while providing shelter for religious and health reasons. This is much more difficult socially in terms of social acceptance of these decisions," said Laura Boudreau, professor of public policy at the University from Columbia. "And so the reputational risks for these companies, if they get it wrong, are really high."
Douglas Brayley, an employment law attorney at global law firm Ropes & Gray, warns clients about the implications of fulfilling a mandate, he said.
“What if 10 percent of your workforce refuses? Are you ready to lay off that 10 percent? “He said he asked customers. "Or what if it was someone at a high level or in a key role, would you be willing to impose consequences? And then sometimes they get more nervous."
He added, "Anytime they mandate but then enforce the consequences unevenly, there is a risk of potentially unlawful unfair treatment."
May 7, 2021, 11:57 p.m. ET
Companies in need of vaccines may also be concerned about side effects or medical issues that an employee claims were caused by the vaccine.
"You could be held liable for any kind of adverse effects that might occur a year or two later," said Karl Minges, chairman of health administration and policy at the University of New Haven.
Some companies work around the problem and try incentives instead. Amtrak pays employees a regular wage of two hours per shot after proof of vaccination. Darden, which owns Olive Garden and other restaurants, told staff that they would offer hourly staff two hours of wages for every dose they received, stressing that it would not make mandatory doses mandatory. Target is offering a $ 5 voucher to all customers and employees who receive their vaccination at a CVS at the Target location.
In the US, the need for vaccines to participate in public life is nothing new. The Supreme Court ruled about a century ago that states could require vaccinations for children attending public schools. And universities like Rutgers have introduced mandatory Covid-19 vaccinations.
However, the pandemic brings with it a number of complications that companies typically prefer to avoid, including personal life, religious preferences, and employee medical history, such as: For example, if an employee is pregnant, breastfeeding, or immunocompromised, information they may not want to reveal.
Large union groups like the A.F.L.-C.I.O. did not aggressively advance the issue either. They face dueling forces – on the one hand they stand up for the rights of the individual employees and on the other hand protect each other. The unions have also spoken out in favor of stricter safety measures in the workplace. These efforts could be hampered by companies' reasoning that compulsory vaccinations reduce the need for such shelters. For example, the return to work protocols negotiated between the Alliance of Motion Picture & Television Producers and Hollywood's unions do not include mandatory vaccinations.
"There will be some people who have valid reasons for not getting the vaccine or wanting to talk about it," said Carrie Altieri, who works in communications for the IBM People and Culture business. "It's not an easy problem at the moment." IBM is working with New York State on a digital passport that links a person's vaccination details to an app to display businesses, such as venues, that may require vaccination. However, no vaccinations are required for employees.
For some businesses, such as restaurants, that are already struggling to recruit, the vaccination requirement could make it even more difficult to hire. And there are questions of logistics and execution. How can companies confirm the accuracy of those who claim they have been vaccinated?
Businesses may need to hire additional staff, possibly with medical training, to perform tasks that could cost businesses – especially small ones – high costs.
Vivint, a Utah-based home security company with 10,000 employees, began offering vaccines at its on-site clinic this week after the state approved the company to distribute 100 shots a week to its employees. It paid $ 3,000 for the necessary medical freezer.
"We don't require employees to be vaccinated, but we encourage them very much," said Starr Fowler, senior vice president of human resources. "For many of our employees, especially younger ones, the easier we make it for them, the more likely they will do this."
Others experiment with the division of their labor force. Salesforce is introducing a policy in certain U.S. offices, including the Salesforce Tower in San Francisco, that allows up to 100 fully vaccinated employees to volunteer to work on specific floors. The New York Stock Exchange issued a memo to trading companies saying they would be allowed to increase their staff on the floor, provided all employees were vaccinated.
The Equal Employment Opportunity Commission issued guidelines in December allowing employers to require workers to be vaccinated before they return to work. However, there is still a risk of litigation.
"Concerning the possibility of litigation seems to me a perfectly legitimate concern," said Eric Feldman, a law professor at the University of Pennsylvania. He added, "It seems to me that employers will be in a pretty strong position legally – but that doesn't mean they won't be sued."
According to the National Conference of State Legislatures, legislation has been proposed in at least 25 states that would limit the ability to require vaccines for students, employees, or the public in general. Some of these restrictions only apply to vaccines that, like those for Covid-19, have not yet been fully approved by the Food and Drug Administration. (The coronavirus vaccines have been approved for emergencies with reservations.)
Pfizer is expected to file for full approval of its Covid-19 vaccine soon. Others are likely to follow.
Jamie Dimon, executive director of JPMorgan Chase, spoke at a conference in the Wall Street Journal this week on "legal issues with obtaining vaccines" when asked if he would like to get workers back into the office. A spokesman for the bank, which plans to open its offices on May 17 on a voluntary basis, said it strongly supports vaccines for employees – apart from religious or health restrictions – but does not need them. A Goldman Sachs spokeswoman, who did not lead the staff one way or another, declined to comment.
One possible avenue for companies looking for a middle ground is to only award the shots to new hires. Even so, there is a fine line between encouraging and requiring the gunshot – which sometimes leads to conflicting messages to employees.
Investment bank Jefferies sent a memo to employees in early February stating, "Vaccination verification is required to access the office." A follow-up memo came on February 24th. "We didn't want it to sound like we were prescribing vaccines," it said.
Coverage was contributed by Rebecca Robbins, Sapna Maheshwari, Kellen Browning, Niraj Chokshi, and Eshe Nelson.