The employment and labour law specialists surveyed more than 1,800 in-house lawyers, human resources professionals and c-suite executives across the US, finding that nearly half (48%) have already decided against compulsory vaccination of employees; 43% said they were still considering the possibility of immunisation but had concerns about implementing such a policy.
Respondents cited resistance from employees who are not in a protected category, but refuse or oppose vaccination generally (79%), and the impact on employee morale and company culture (67%) as their primary worries for mandating vaccination.
Almost two-thirds of employers were concerned about legal liability should an employee experience an adverse reaction, while almost half worried about administrative difficulties with implementing the policy.
“Given the wide range of legal and practical considerations employers must balance in establishing covid-19 vaccination policies, it’s not surprising that most are currently planning to encourage, rather than mandate, immunisation,” said Barry Hartstein, leader of Littler’s covid-19 vaccination working group.
“It’s also a telling sign of the unprecedented environment we’re operating in that employers’ top two concerns with requiring vaccination are not legal or liability issues, but rather focus on the personal perspective of employees grappling with an ongoing global crisis and the potential impact on company culture.”
It’s tempting to see vaccines as a cure-all for the extreme disruption wrought by covid-19
The survey suggests an overwhelming majority of employers will encourage employees to take the vaccine, with only 6% planning not to do so. Nearly 90% of respondents said they would provide information to employees on the benefits of vaccination and 37% said they would offer vaccine administration on company premises for the convenience of their staff.
Employers are also considering incentivising immunisation including paid time off to receive the vaccine or recover from its side effects (33%), as well as cash awards or other monetary benefits (11%).
However, a coalition of 41 business groups has recently written to Charlotte Burrows, new chair of the US Equal Employment Opportunity Commission (EEOC), seeking clarification on whether employers can offer their employees vaccine incentives without violating the Americans With Disabilities Act.
Guidance from the EEOC said employers could only offer “de minimis” incentives to encourage employees to take part in a company wellness programme. The commission’s rules on incentives have since been removed as they were not finalised and published in the Federal Register by the time of President Joe Biden’s inauguration. The EEOC’s next steps are “under consideration”, meaning employers remain uncertain how they may proceed.
Responses to the survey suggest home working is set to continue for some time to come even as vaccinations are rolled out across the country. Almost half of employers are extending remote work at least into the summer and more than one-third are allowing employees who wish to work on-site to do so voluntarily.
Almost three-quarters of employers expressed concern at providing reasonable accommodations to those who cannot or who refuse to be vaccinated. Just 7% of respondents said they would bring only vaccinated employees back into the workplace, and only 6% said they would bring all employees back, keeping vaccinated and unvaccinated employees separate.
Seattle-based Davis Wright Tremaine announced in January that attorneys and staff would not be eligible to work from the firm’s eight offices or attend firm-sponsored events until they were vaccinated.
“DWT continues to place the health and safety of all of our lawyers and staff as our highest priority. As vaccines against covid-19 become increasingly available, we are adopting a policy to safeguard the health of our employees and their families, our clients and visitors, and our communities,” managing partner, Jeff Gray, said in a statement.
“We believe it is our responsibility to do our part, and we need everyone's help to be able to get back to more normalised operations as quickly as we can.”
"If an employer does mandate that employees get vaccinated, then it must be prepared to take consistent disciplinary action and potentially separate employees who refuse to get vaccinated for personal reasons that are not subject to an accommodation," advised Daniel Kadish, an associate and leader on Morgan Lewis’ covid-19 compliance and counselling team.
The recent appearance of more infectious strains make workplace testing that much more critical.
“It’s tempting to see vaccines as a cure-all for the extreme disruption wrought by covid-19,” said Devjani Mishra, a leader of Littler’s covid-19 taskforce and return-to-work team. “But the reality is they are just one arrow in the quiver for employers, who must continue existing safety protocols, including symptom screenings, travel restrictions, face masks and distancing.
“Especially in the transition period – when some workers are vaccinated, and others are not – organisations must remain hyper-vigilant in enforcing these policies as a matter of workplace safety, while being mindful of employee morale.”
When employees do return to the workplace, employers plan on encouraging or requiring the wearing of face masks (81%), modifying physical workplaces to maintain distance between workers (66%), limiting or restricting employee contact in common areas (62%), increasing frequency of cleaning (56%), and conducting symptom screenings (50%).
However, despite these precautions, almost half of respondents said they do not plan to test their employees for covid-19. Lawyers at Littler surmised this was likely due to the high cost of testing and legal issues around employee privacy and information security.
“Workplace testing is a critical part of the return-to-work conversation, especially given that symptom screening will not identify infected, but asymptomatic, employees,” said Philip Gordon, co-chair of Littler’s privacy and background checks practice group. “The recent appearance of more infectious strains of covid-19 make workplace testing that much more critical.”