Employers wary of vaccine mandates

Employers hoping that widespread COVID-19 vaccinations could enhance their workplace safety protocols are treading lightly when it comes to requiring the shots for their employees.

Emerging state proposals that would ban such mandates and issues surrounding the vaccines themselves make companies cautious about requiring their use, experts say. 

Even employers of workers at the greatest risk of COVID-19 infection and transmission are opting to not mandate vaccinations, they say. 

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Health care workers were among the first group in many states to become eligible for vaccination in December. Results of a poll released in March by the Kaiser Family Foundation and The Washington Post showed that 18% of the 1,327 health care workers polled said they would not get vaccinated and 12% were undecided.

The New York Department of Health in April set a new policy for nursing homes whose staff do not wish to be vaccinated for COVID-19 after finding that as many as half of such employees who work with high-risk populations declined to be vaccinated. Nursing home staff who refuse vaccinations must sign a waiver, according to the new policy.

First responders are another high-risk group of employees with vaccination hesitancy, according to David Miller, Miami-based labor and employment law attorney with Bryant Miller Olive P.A., whose clients include several municipalities. Mr. Miller estimated that roughly half of his clients’ first responders have declined the vaccine despite high infection rates. In the summer of 2020 at least one-half of a client’s fire department personnel were on leave because of COVID-19, he said.

Overall, 25% of 802 people polled between Feb. 25 and March 1 by Monmouth University researchers said they will not get vaccinated. Other surveys showed similar results and found that some workers didn’t want to be vaccinated because of uncertainty surrounding the vaccines’ safety and other health concerns. 

In mid-April, the U.S. Centers for Disease Control and Prevention reported that 140 million adults — 54% of the U.S. population — had received at least one dose of the vaccine. 

One compelling reason for not mandating vaccinations is that the vaccines are under emergency use authorization and classified as “voluntary,” said Helen Holden, a partner at Spencer Fane LLP in Phoenix. “Employers are keenly aware that they are doing this vaccine rollout in an environment with that emergency use authorization,” she said. 

“There’s 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. 

Mr. Miller said some employers are demonstrating “respect for individual choice.”

“This is potentially a life and death decision that people are making and management in charge … don’t want to be in the position to force someone to make a decision,” he said. 

The approval of one of the three available vaccines in the United States — the Johnson & Johnson/Janssen COVID-19 vaccine — was halted in April after several people suffered fatal side effects, but it was later reinstated when regulators determined that the benefits of having the vaccine outweighed the risks.

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

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

Fern Fleischer-Daves, of counsel with the Washington office of Conn Maciel Carey LLP, is compiling a list of employers offering incentives. They range from $500 cash — such as a large Texas health system is offering its workers — 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, and employers would have to accommodate such workers, according to Courtney Malveaux, Richmond, Virginia-based principal and attorney with Jackson Lewis P.C. 

It’s another reason many employers are opting to encourage rather than require vaccinations, he said, noting that this approach has resulted in an acceptable outcome for most.

One client was able to get 75% of its workforce vaccinated, Mr. Malveaux said. “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.