Like many responsible employers who are concerned about the welfare of their staff, their staff's families, their clients and their communities, I ask myself what I can do to ensure rapid adoption of the vaccines that can end the pandemic.
For most of us, the answer is: not much, apart from cheerleading.
Can an employer require workers to get immunized once the vaccines that are on the cusp of being rolled out become widely available? Some experts say yes, others say no, but almost everyone agrees that the more accurate response is “it depends.” If an employee could expect to be exposed to disease on the job – a health care worker is the obvious example – then the employer has a basis for requiring shots in the interest of workplace safety. Many health care workers already face requirements to get an annual flu shot, for example. But no workplace is absolutely safe from the virulent coronavirus that causes COVID-19. Does the workplace safety rationale apply to a city bus driver? A retail clerk? An office worker who must take an elevator to reach his or her desk?
Another basis for requiring immunization would be if the law demands it. All states require schoolchildren to be vaccinated against formerly common diseases, and some requirements apply to teachers or other school staff as well. To my knowledge there are no requirements, thus far, explicitly applicable to COVID-19. This could change either by legislative action or executive order once the new vaccines are available. But the law must be followed; if the law says vaccinate, one must vaccinate.
Except even in these cases, there are exceptions. The Americans with Disabilities Act requires employers to make reasonable accommodations for employee medical conditions. Some employees will be entitled to vaccine exemptions on medical grounds. Other civil rights laws at federal, state and local levels require some exemptions for sincerely held religious or moral beliefs that may oppose vaccination. But these are not always absolute. After recent measles outbreaks, lawmakers in New York, Maine and Washington state removed or tightened religious exemptions for vaccinations in schools.
A boss can probably ask the yes-or-no question, “Have you been immunized against COVID-19?” But if the answer is “no,” it is not clear – or at least not clear enough to me – that the employer can demand to know why not. Some employees might perceive the follow-up as an invasion of their right to medical privacy. Maybe the employee had COVID-19 earlier or tested positive for antibodies, and believes this provides sufficient immunity. Or maybe the employee has a specific health condition that he or she has not disclosed to the employer. According to the federal Department of Health and Human Services, the federal privacy rule that applies to health care providers and their affiliates does not extend to employer-employee relationships. Even so, an aggressive demand for personal medical information creates too many other legal and practical risks for my taste. For companies that operate in multiple states, variations in local law increase the risks that a forceful approach will run afoul of a statute or court interpretation of employee privacy rights or protections against discrimination.
Sometimes such risks are not obvious. Suppose, for example, that an employer requires workers to be vaccinated. Must the employer grant time off to comply? Must such time off be paid? Even if the vaccines are administered free of charge, as federal officials have said would be the case, unpaid (or no) time off might have a disparate impact against members of racial minorities, who are overrepresented in lower-paid jobs and thus might have a harder time complying with an employer’s demand.
As Carrie Hoffman, a Dallas-based employment lawyer at Foley & Lardner LLP, explained to The Wall Street Journal, mandating a vaccine could open employers up to legal risk. Declining to mandate a vaccine is unlikely to do so. “I don’t see how an employer would be liable for not mandating a vaccine,” Hoffman said.
My guess is that most employers will encourage healthful and responsible choices, but will not require them unless legal mandates demand it. Many of us have been thinking about these issues for months. As summer progressed to autumn, it became increasingly clear that vaccines were probably coming sooner or later, and most likely sooner. I shared tentative plans for our staff at Palisades Hudson about six weeks ago.
“As I previously indicated, we will remain in work-from-home mode, with skeleton coverage in the offices, at least through the end of 2020,” I wrote in an email on October 26. “The most likely scenario is that one or more vaccines will complete clinical trials or will be approved for emergency use in this country before the end of this year. Initially, doses are likely to be distributed to medical and other essential personnel, and next probably to at least some demographic groups that are considered vulnerable. A wider rollout of the vaccine(s) will probably occur during the first half of 2021. It seems as if states will play a significant role in determining how this is handled; some, notably New York, are insisting this be the case. So there may be some regional variation in how the distribution is carried out.
“I expect there will be two stages to a return to normal office operations. First there will be the question of who CAN return to the office. In the first stages of vaccine distribution, I will probably adjust our pandemic policies so staff CAN return to the office if: 1) You have been vaccinated; 2) If immunization requires two injections, you have received both; and 3) You have completed any waiting period that is recommended for the body's immune system to respond and provide protection. I will give everyone the option to continue working from home during this first stage, and would recommend you avoid the office (or go only during off hours) if there is anyone vulnerable and unvaccinated in your household or with whom you expect to have close contact.
“In the second stage I will announce who is EXPECTED to return to the office. This will probably occur when vaccines are available to substantially everyone, and when community spread of SARS-CoV-2 is deemed not to be significant either nationally or in your region. Even at that point, I plan to be liberal in allowing work from home for employees whose personal situations make this important, recognizing that school, day care or summer camp availability may be limited even when vaccines become widely available, or if you have other particular needs.”
I tried to strike a balance. I am not requiring anyone to be vaccinated to keep or perform their job. Those who get immunized first will be the first ones permitted to return to the office, but anyone who chooses to wait can continue to work from home, as nearly all of us are now doing. The select few who are currently manning the offices will continue to do so regardless of their vaccination status. And eventually, when the pandemic ends and life returns to normal, everyone can come back. Even in pre-pandemic times, about a quarter of our staff worked from home on any given day, so this long-term mixed environment will be familiar to us.
I still favor the adoption of “vaccine passports,” which I recently wrote about, for industries such as travel, entertainment and hospitality. These industries must cater to the general public, and they cannot succeed without putting large groups of strangers in close proximity. Customers are not in the same relationship as employees; if they don't want to get vaccinated, they can stay home. As for the workers, vaccination mandates for employees in such establishments are easier to defend than mandates for an office-based business with little public traffic, like ours. Whether they are easier or legally safer to enforce is another matter.
So most employers are probably going to do more or less what I seek to do: encourage workers to get vaccinated as early as possible, and recognize that while many will, some won’t. It is our job to make it all work.