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Employers wary of mandating COVID-19 vaccinations

Posted On: Mar. 31, 2021 7:00 AM CST


Employers are treading lightly when it comes to requiring their workers to receive COVID-19 vaccinations due to emerging state proposals that would ban such mandates and concerns surrounding the vaccines themselves, experts say.

Even employers of workers who pose the greatest risk of COVID-19 infection and transmission are opting to not make shots mandatory, they say.

Health care workers were among the first groups in many states that became eligible for COVID-19 vaccinations in December. Results of a poll released March 19 by the Kaiser Family Foundation and The Washington Post showed that 18% of the 1,327 health care workers polled said they will not get vaccinated, and 12% remain undecided.

In another survey, by Monmouth University, 25% of 802 Americans polled between Feb. 25 and March 1 said they will not get vaccinated. Other surveys generated similar results, indicating some workers don’t want to be vaccinated because of uncertainty about the vaccines’ safety and other health concerns.

One compelling argument against mandates is that the vaccines are under emergency use authorization and the disclosures that accompany them state that they are “voluntary,” according to Helen Holden, a partner at Spencer Fane LLP in Phoenix, Arizona.

“Employers are keenly aware that they are doing this vaccine rollout in an environment with that emergency use authorization,” she said.

“There are a whole series of controversies related to the vaccine itself,” said Dr. Jonathan Weiner, professor of health policy management and health informatics at the Johns Hopkins Bloomberg School of Public Health. 

Some legal experts say “you can’t mandate something in emergency approval — it adds another complexity,” Dr. Weiner said. “It’s not a fully approved drug.”

Also, lawmakers in more than a dozen states are considering bills that would prohibit mandatory COVID-19 vaccinations.

Ms. Holden said that “a lot of employers early on were looking at the mandatory vaccines, and we had a lot of questions about it. …  Most have settled on encouragement and incentives.”

Fern Fleischer-Daves, counsel with the Washington D.C. office of Conn Maciel Carey LLP, is compiling a list of employers offering vaccination incentives: They range from $500 cash to vacation days and gift cards.

While the U.S. Equal Employment Opportunity Commission has said employers can make vaccinations mandatory, workers can decline for religious or health reasons.

The requirement to accommodate such requests is another reason why many employers are opting to encourage, rather than require, vaccinations, said Courtney Malveaux, Richmond, Virginia-based principal and attorney with Jackson Lewis P.C.

Mr. Malveaux said one client was able to encourage three-quarters of its workforce to get vaccinated.

“Ultimately they decided 75% is pretty good and we can work with that,” he said. “Getting that 25% may not be worth it (legally), and you may never get there.”

Angela Childers contributed to this report.

More insurance and workers compensation news on the coronavirus crisis here