The article points to the changing winds about requiring or not requiring employees to be vaccinated. More court challenges are to be expected in the coming months, but this issue is not anywhere close to being settled.
Employment lawyers say more companies are considering making the vaccine mandatory for workers.
By Ty West – Senior Editor, The Business Journals, Jun 21, 2021
Earlier this spring, as Covid-19 vaccine access expanded rapidly across the
nation, most employers weren't choosing to require workers to receive
the vaccine.
A February survey by global employment law firm Littler Mendelson PC found
less than 1% of employers were requiring Covid-19 vaccinations for all workers — although another 6% planned to take that step in the future.
While experts say there’s nothing in federal law prohibiting a vaccine mandate for private employers, many companies concluded it wasn’t worth the headaches.But there are signs those sentiments may be changing.
Employmentlaw attorneys say more businesses are now seriously considering vaccine
mandates than they were three months ago, and they anticipate the number of employers implementing a mandate will climb in the months to come, with health care providers likely to lead the way.
Several factors are contributing to the shift, including recent guidance from the Occupational Health and Safety Administrationand a federal court's dismissal of a Texas lawsuit by employees of Houston Methodist Hospital, who were suing the hospital over its Covid-19 vaccine requirement.
Steven W. Suflas, a Salt Lake City-based senior counsel at Ballard Spahr LLP
law firm, said the court decision has made employers more comfortable with the idea of a vaccine mandate, and it's one of several factors that has companies taking a closer look at mandates. “They are thinking about it harder, and I think we will see people moving to [mandates],” Suflas said.
Prior to that decision, many employment law experts had said some employers had been wary of mandating a vaccine under emergency use authorization from the Food and Drug Administration, in part because of a lack of court precedent and unclear federal guidance. That was leading companies to focus their efforts on encouraging vaccinations through incentives and education efforts.
Suflas said a full approval of vaccines from the FDA would likely be another milestone leading to more mandates. Meghan McCaig, a Dallas-based partner at Thompson & Knight LLP law firm, has also noticed more employers are considering a mandate as the
situation evolves.
While OSHA's long-awaited guidance didn't focus on vaccine mandates, McCaig said it highlighted the benefits of having a fully vaccinated workforce by saying fully
vaccinated employees can resume activities without masks or social distancing, unless required by state or local laws.
Experts say that could further encourage employers to pursue a mandate when
they believe it's possible to reach a 100% vaccination rate. Many of OSHA's recommendations on Covid-19, particularly those around masks, wouldn't apply to a company with a fully vaccinated staff.
For employers looking to implement a mandate, experts offer a few tips. McCaig
said employers must ensure sure they are taking the Americans with Disabilities Act and the Equal Employment Opportunity Commission guidelines into account for employees with a medical or religious reason for refusing the vaccine. Companies also need to be aware of state or local laws that may prohibit mandates or even asking about vaccination
status.
Suflas said it's critical to know what you’ll be getting into if you opt to require the vaccine.
“You’ve got to have a finger on the pulse of your workforce,” Suflas said.
“You’ve got to be constantly analyzing the possible response.” The Covid-19 vaccine is a political lightning rod within many companies, so experts say employers need to keep that in mind and consider the impact of a mandate on morale, retention and recruitment.
Some employment law experts have told The Business Journalsthey’ve had to tread carefully with vaccine policy for fear of turnover or worries about attracting workers in the intense labor market. Beyond anticipating the response, Suflas said it’s important for companies to justify their mandates and communicate that information to employees.
“From a human resources perspective, the better an employer can justify it
and can tie the vaccine mandate to the business — to come up with a business case as to why it’s important — the stronger position they’ll be in,” Suflas said.
