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Study puts waning employer vaccine mandates in focus


Employer interest in COVID-19 vaccine mandates is waning in the wake of federal measures being struck down, according to a recently released survey.

While employers increasingly implemented COVID-19 vaccine mandates or testing requirements in the past year, only a small percentage that don’t have such policies say they are planning on making them mandatory, according to a March survey of 1,275 in-house lawyers, C-suite executives and human resources professionals conducted by the employment law firm Littler Mendelson PC.

Overall, 41% of those surveyed said they have vaccine policies in place, compared with 21% in the 2021 survey. Only 1% plan to implement mandatory vaccine or testing policies, and 2% say they are unsure.

Even as the percentage of employers putting policies in place nearly doubled since the last survey in August 2021, the largest share of respondents in the latest survey — 56% — said they will not implement mandates or testing unless required by law.

Yet the increase in the number of employers putting the policies in place is surprising considering that the Occupational Safety and Health Administration in January suspended vaccine and testing requirements, said Devjani Mishra, New York-based shareholder with Littler Mendelson, which conducted the survey in March. OSHA’s action followed a U.S. Supreme Court decision that found the vaccine mandates for all employers with 100 or more workers unconstitutional.

But many of those that began putting mandates in place before the suspension likely continued with those policies, Ms. Mishra said.

“There were people who were down the path,” she said, setting up their policies in anticipation of the OSHA requirements and others that were expected to require federal contractors and subcontractors to have mandates in place. The federal contractor requirement was challenged in several states.

“Those things stalled out, but those companies went ahead,” Ms. Mishra said of employers that continued with mandate plans.

The uptick in employer mandates might also stem from careful risk management, said Jeffrey Adelson, general counsel at Adelson McLean APC in Newport Beach, California.

In many states, if someone is determined to have contracted COVID-19 at work, “it is presumed to be a workers comp claim,” Mr. Adelson said. “You have presumptions of compensability in various states.”

“Good loss control has to look at workers compensation issues and expenses, along with everything else they look at. They want to take every opportunity they can to reduce the number of COVID cases,” Mr. Adelson said.

Kimberly Forrester, partner with Clyde & Co. in San Francisco, agreed that companies are looking closely at how they manage the COVID-19 risk, which could have spiked the number of mandates. “As more workplaces have had employees return in early 2022, employers have had to evaluate their policies on mandates and testing requirements,” she said in an email.

Employers crafting vaccine and testing policies are “likely motivated by a combination of the views of their workforce, compliance regulations and risk mitigation,” Ms. Forrester said.

“Many employers have conducted surveys of their employees to better understand employee preferences and comfort levels,” she said, while determining the number of vaccinated and unvaccinated employees.

The survey showed that 74% of respondents are tracking or plan to track the vaccination status of employees.

Showing a willingness to reduce the risk of COVID-19 infections at work is important for employers, whether their employees are vaccinated or not, Mr. Adelson said. Employers have been sued by workers who claimed they didn’t do enough to prevent employees from contracting the virus, he said.

Whether it is by requiring the vaccine, giving people time off to get it or encouraging other safeguards, employers show a willingness to mitigate the exposure, Mr. Adelson said. That could reduce the chances that an employer could be hit with willful misconduct charges because of an absence of care, he said.