Mandatory vaccinations at work

I’m not envying my friends in human resources and leadership roles lately. As the COVID-19 pandemic rages on, they continue to have to make tough calls regarding the health and safety of their employees. The latest debacle? Whether or not to require mandatory vaccinations for employees.

As desperate as we all are for this pandemic to be behind us, it’s far from over. The early days of September are seeing over 140,000 new COVID-19 cases per day in the United States. And although the COVID-19 vaccination has been made more widely available across the country, only 62.5% of adults have been fully vaccinated. That’s why on September 9, 2021, President Biden announced his plan to have OSHA write a new ruling, calling for businesses with 100 or more employees to require vaccination or mandatory weekly testing for their workers.

That leaves organizations in a precarious position as they consider returning to in-person work. It also has some candidates in limbo as they scope out the working conditions and policies of companies with which they’re interviewing.

Today, we’ll get a lay of the land: what approach are companies taking to vaccination policies? How are employees and candidates responding? And what should your organization do?

A measured approach

Facebook, Google, Disney, and Walmart are just a few of the companies that announced requirements for employees to be vaccinated — at least to come into the office — before President Biden’s new actions. Every day, more are following suit.

Even unions have begun backing vaccine mandates, including the federal National Treasury Employees’ Union, The United Food and Commercial Workers (UFCW), and the affiliated Retail, Wholesale and Department Store Union (RWDSU).

That’s not to say these decisions have been made lightly. Let’s take a look at some of the factors they’ve had to consider, which will be particularly salient now for small businesses exempt to the new OSHA ruling.

The legal stuff

There’s plenty of legal precedent for employers to require mandatory vaccinations. Perhaps most compelling of all is their duty of care under the Occupational Safety and Health Act of 1970 (OSHA) to provide a safe workplace for employees. Even before the President’s new action, OSHA was still recommending mandatory vaccination policies (emphasis added):

“OSHA emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19. OSHA strongly encourages employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects…Finally, OSHA suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

While you may have heard claims that asking for proof of vaccination is a violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), that is undeniably false. To fulfill their duty of care under OSHA, employers can ask for proof of vaccination against COVID-19. In fact, according to the HIPAA Journal, “Any organization can ask any employee, customer, or relevant third party whether or not they have been vaccinated against COVID-19 without violating HIPAA.”

However, as a recent article in SHRM confirms, employers that encourage or require vaccinations “must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 and other workplace laws, according to the EEOC.” While this includes exemptions offered to vaccination mandates for religious or medical reasons, employers still have the right to reassign or terminate employees if their unvaccinated status would make the workplace unsafe (there’s OSHA again) or if any accommodation would lead to “undue hardship” for the business.

Woah. That’s a lot to keep track of, and again, part of why I say I’m not envying my friends in HR these days. The good news is, it’s easier for organizations to make the call when the rules are clear and when so many have already taken a stance.

Insurance surcharges

Some organizations are considering (or already put in place) plans to add a surcharge to health insurance for employees who remain unvaccinated. Most notably, Delta Air Line’s implemented a hefty $200 monthly surcharge for unvaccinated employees. Just two weeks after the announcement was made, 20% of their unvaccinated employees had changed their tune and gotten the jab. Pretty impressive results, and a potentially compelling strategy for small businesses under the 100 worker threshold.

The impact on hiring (and how to handle it)

The topic of mandatory vaccinations comes up on nearly every call I have – with clients and candidates alike. The fact is, the majority of candidates I talk to want to know that the companies they’re interviewing with will require vaccinations if the expectation is for them to return to the office.

Turns out, it’s not just my talent pool: over half of employees surveyed said they’re in favor of employer vaccination requirements. The trend is even stronger for remote workers. That I can confirm, as I’ve had plenty of candidates say they’ll walk away from their current employer or they’ll decline an offer if they’re forced to return to an office without a vaccine mandate.

It’s undoubtedly a tricky business. The best advice I can give you? Once you’ve done the basics (evaluated the risk of workplace spread, assessed the administrative cost to your business of tracking vaccination status, written out your policies, and addressed any liability concerns), you must put in place a clear, comprehensive, and timely communication plan for existing and potential employees. I’ll leave you with three tips:

  1. With mRNA vaccines, it takes five to six weeks for employees to get fully vaccinated, so your plans and policies should be communicated well before the vaccination “deadline.”
  2. Be transparent with candidates. They deserve to know what they’d be signing up for if they were to take a position at your organization.
  3. Explain the “why.” People will respond better to imposed policies when they understand the benefits to themselves, their families, their communities, and the organization as a whole. Spell it out and be human.

Most importantly, stay in the know. Recommendations and regulations are changing at a moment’s notice, so your employees will appreciate prompt communication and updates as things shift.

Still feeling uneasy about your organization’s vaccination policies and their impact on hiring? We can help you put together a communication plan to communicate policies without sacrificing any opportunity to recruit top talent. Drop me a line.