Vaccine Requirements in the Office

Although we’re still in the grips of a pandemic, many companies and organizations are asking that their employees return to the office. And even with different variants of the virus popping up, many employers are still looking at ways they can safely get their employees back to the workplace, including hybrid schedules that don’t require staff at full capacity, mask policies, and mandating vaccines. In September 2021, the Biden administration implemented the Path Out of the Pandemic COVID-19 Action Plan which requires:

• employers with 100 or more employees to mandate vaccination and require any unvaccinated workers to undergo weekly testing;
• mandates vaccination for all workers in health care settings that receive Medicare or Medicaid reimbursement; and
• calls on states to require vaccination for employees in schools.

On Nov. 5, 2021, the Occupational Safety and Health Administration (OSHA) released its emergency temporary standard (ETS) to support Biden’s plan in requiring employers with 100 or more employees to ensure employees get vaccinated or test weekly for COVID-19 and wear a mask. The plan is being challenges and The Supreme Court heard arguments on Jan. 7, 2022. At the time of publication, the ETS has not been lifted. The Society for Human Resource Management has done an excellent job of following this story and we recommend employers visit SHRM’s news site for guidance.

Most large U.S. employers are now requiring, or planning to require, that their workers get vaccinated against COVID-19, according to a recent article from CBS News. In fact, a Willis Towers Watson survey of 543 employers states that 57% of all organizations said they either require or plan to require vaccinations, and of that, 18% already do and 7% are planning to put a requirement in place. Another 32% will do so if the Occupational Safety and Health Administration Emergency Temporary Standard takes effect.

While some businesses and organizations are taking cues from their local governments and requiring that their staff be masked and vaxxed when they’re in the office, others are trying to find legal channels to circumvent local anti-vaccination mandate laws. The National Academy for State Health Policy (NASHP) reports that, as of November 19, 2021, Montana and Tennessee have banned all private employers from mandating that their employees be vaccinated, and nine other states are permitting the use of vaccine mandates as long as employers provide religious and medical exemptions. In 19 states, state workers must be vaccinated while 10 states have banned vaccine mandates for state employees. Organizations and companies in states that don’t allow vaccine mandates will have to navigate this new office landscape and make what could be a contentious decision—to implement a vaccine mandate or not.

Assess Your Organization’s Vaccine Mandate Needs

In their article “Viewpoint: Should Your Company Implement an Employee Vaccination Mandate?”, Jeff Levin-Scherz and Mike Orszag assert that organizations must first evaluate the potential for the spread of COVID within their offices. “Employees are most likely to accept vaccination mandates when there is strong evidence that they will protect the most vulnerable or have other clear business or public health benefits,” they state. “Even for those companies with a lower risk of onsite transmission, mandates can increase employees’ and customers’ perceptions of safety.” For employers with offices in COVID “hot spots” or have staff that frequently travel, a vaccine mandate for the office space is a must, the authors write, and it’s imperative to relay these vital points to staff. Being transparent and having an open, honest dialogue with your employees regarding the importance and reasoning behind having a vaccine mandate is helpful in abating negative responses to vaccination requirements. In addition, it’s key that employers drive home the point that vaccine mandates are more about protecting staff, customers, vendors, and their families and communities than taking away personal freedoms.

Examine Federal and State Vaccine Policy

Because the Equal Opportunity Employment Commission requires U.S. employers to offer exemptions to vaccination mandates for religious or medical reasons, employers must include these exemptions in their return-to-work and vaccination mandate policies. It should also be noted that employers have the right to reassign or terminate employees if their unvaccinated status would make the workplace unsafe and any accommodation would lead to “undue hardship” for the organization. Additionally, an employer can require that employees who are exempt from getting vaccinated undergo frequent testing to decrease the chances of a COVID outbreak in the office. Naturally, your organization should run any vaccine mandate policy by its legal representatives. Employers should also check the temperature of its staff to determine how many of their employees are already vaccinated or plan on getting vaccinated as it will provide pertinent information regarding staff buy-in on the organization’s COVID protocols.

Develop a Solid Communication Plan

As mentioned above, transparency is crucial to getting staff on board with a vaccine mandate, or at least open to discussions about vaccine requirements in the office. Because vaccines have become so politicized, employers must walk a fine line when discussing any potential COVID mandates with their staff, and strategically planned communication efforts are intrinsic to making employees feel seen and valued.

“There are a number of best practices employers and HR leaders should follow when it comes to communicating with workers about company vaccine policies, including telling employees as soon as possible—even if you’re just thinking about requiring vaccines; being clear about the reasoning behind a mandate; and laying out the consequences for not abiding by the mandate (with specific dates),” states Kathryn Mayer in a recent article for Human Resource Executive.

Once your organization has put its policy in place, make sure that your communication of this policy is featured on every internal platform your organization uses so that your messaging is seen by all those on staff, regardless of whether or not they intend on working in the office. You may also want to make your policy known to other stakeholders, such as vendors, and anyone else who may come into the office.

Anticipate Pushback

Because of the political nature of the pandemic, it’s highly likely that your organization could receive some pushback from its employees, particularly if the organization is located in a politically conservative state. As we’ve witnessed over the last few months, when companies and organizations began going back to the office, a number of employees have opted to quit or be fired instead of complying to their workplace’s vaccination policy. Although your organization may be well within their rights to terminate an employee who is not exempt but refusing to comply with your vaccination protocols, firing may not be the most beneficial first step. Start by offering a safe space where the employee can discuss their resignations about your policy. Ask if they’d like more information about your organization’s policy or about the vaccination itself. Remember, not everyone uses the same information streams and there is an abundance of false information out there about COVID, masks, and vaccines. If an un-exempt employee is adamant in their refusal to be vaccinated, or requests time to think about the information you provided, unpaid leave would be the next best step before termination.

“At a very minimum, and at least initially, the employee should be placed on unpaid leave,” explains Jonathan A. Segal, employment and labor partner at Duane Morris LLP. “However, the leave should not be indefinite. Circumstances may change; plus, indefinite leave sets a bad precedent. Consider granting leave for some specified period of time, for example, 30 days. Upon conclusion of the time period, additional leave may be reasonable. It is also possible that another job will become available that in the employer’s judgment, and consistent with any applicable law, the employee could perform without a vaccine.”

Personal and political beliefs aside, protecting your staff and maintaining confidence in your organization’s upper management—and employee morale—are essential to keeping those who work and visit your office safe and preventing the spread of COVID.