More than 62% of all US adults are fully vaccinated against COVID-19. And throughout the pandemic, businesses have been working through ways to keep employees safe. Especially as the highly contagious Omicron variant has interrupted return-to-office plans in 2022. One of the most controversial ideas: Requiring employees to get a COVID-19 vaccine before coming back into the office IRL. Which has some wondering, can employers legally do that?
Here’s What Officials Say About Workplace Vaccine Mandates...
In May 2021, the US Equal Employment Opportunity Commission (EEOC) updated its guidance to say that yes, employers can require employees to get a vaccine before returning to the office. Reminder: the EEOC enforces federal law that makes it illegal to discriminate against employees or job applicants based on factors like race, color, religion, disability, and age.
But the commission said that vaccine mandates have to abide by the Americans with Disabilities Act and Civil Rights Act. (Meaning: If someone can’t get vaccinated because of a disability, religious belief, or other reason, companies have to accommodate those employees and keep their info confidential.) One accommodation example the EEOC gave in its guidance is for an unvaccinated employee who’s in the office to wear a face mask or social distance from coworkers.
The EEOC also said that companies can offer incentives to employees to encourage them to get a shot — as long as it’s not "coercive" (though it didn’t elaborate on what is considered coercive). Some businesses have already jumped on that bandwagon and offered perks like extra PTO or pay, including American Airlines, Dollar General, and Trader Joe’s. And the US Chamber of Commerce has more info on ways to incentivize employees to get vaccinated.
HIPAA and Your Vaccination Status
There’ve been posts on social media claiming that asking about vaccine status is a violation of HIPAA. Here’s the reality: The Health Insurance Portability and Accountability Act of 1996 — aka HIPAA — created national standards for protecting patients’ personal health info. But experts say the protection only applies to certain health entities (think: health care providers or insurance companies). So businesses or individuals can ask you about your vaccination status without violating the law. But experts also say you don’t have to give up that info if you don’t want to (though there may be consequences, like not being allowed in a certain business).
Psst…See what US Surgeon General Vivek Murthy had to say about it here.
The White House Weighs In: Federal Mandates
When the Delta variant swept through the nation in the summer and fall of 2021, President Joe Biden took action.
In July, the Department of Veteran Affairs became the first federal agency to require its health care workers to get vaccinated against COVID-19. Weeks later, Defense Secretary Lloyd Austin said US service members would be required to get a shot by Sept. 15. They could face punishment for refusing to get vaccinated, though there are exemptions for health or religious beliefs.
Then, in September, Biden unveiled a six-part plan requiring vaccinations for nearly 100 million Americans. But some of them have been blocked from taking effect. Here’s what he announced...
Private-sector employees: All employers with more than 100 workers would have a choice: employees either get a vaccine or get tested weekly. Unvaccinated workers would also have to wear a mask indoors at work. (Note: This wouldn’t apply to remote offices.) Companies would have to provide paid time off for employees to get their shot(s). And any business that didn’t comply would face a $14,000 fee per violation.
That’ll be a 'no': This mandate was in effect for three days before the Supreme Court blocked it on Jan. 13. They said that OSHA (read: the fed agency that monitors workplace safety) can "regulate occupational dangers," but doesn’t "have the power to regulate public health more broadly."
Health facilities: Workers in hospitals, nursing homes, and other health care facilities that receive reimbursements from Medicaid or Medicare will need to get vaxxed. This one doesn’t include a test-out option.
Moving along: On Jan. 13, the Supreme Court upheld this mandate. Its reasoning? Because hospitals are inevitably more susceptible to contagion. Now, health care workers must get their first dose by Jan. 27 and be fully vaxxed by Feb. 28.
Federal gov: All federal employees were required to be fully vaccinated by Nov. 22. Same for anyone who conducts business with the federal gov. And there is no option for weekly testing. But anyone unable to get a shot for medical or religious reasons has been excused. It’s unclear if testing regulations are implemented for anyone excused from getting the vaccine. Meanwhile for those that don’t fall into the exemption category: They receive "counseling" and have five days to begin the vaccination process. Or fed employees could face disciplinary action like a 14-day suspension or termination.
Pump the brakes: In December, a federal judge temporarily halted the vaccine mandate for federal contractors.
Schools: Education programs and schools funded or run by the gov will require vaccinations for all staff starting Jan. 31. No word yet on a federal requirement for students to get vaxxed.
Local governments are mandating vaccines too. In December, NYC became the first city in the nation to announce a vaccine mandate for all private-sector employees. Workers needed to be vaxxed by Dec. 27.
And don’t expect vaccine mandates to go away anytime soon. As we continue to learn more about the new Omicron variant, companies may feel motivated to set up a mandate for their workers. Including requiring booster shots.
Companies Implementing Vaccine Mandates
Back in April 2021, Houston Methodist Hospital became one of the first hospitals in the nation to require its employees to be vaccinated against COVID-19. The privately-run hospital said they could fire employees that were unvaccinated or didn’t get a medical or religious exemption to the rule.
One month later, 117 staffers sued, claiming that it’s illegal for their employer to make them get an “experimental” vaccine in order for them to keep their jobs, comparing themselves to "guinea pigs." (Note: 178 of the hospital’s roughly 26,000 employees were suspended in early June for not following the guideline.)
In June, a federal judge said ‘case dismissed,’ saying that Houston Methodist didn’t do anything illegal and calling the claims about the vaccine "false." The judge’s decision appears to be the first ruling to side with employer-mandated vaccines for workers. But the employees have appealed the decision. In the meantime, the hospital is now also requiring booster shots for employees.
Following the Houston Methodist Hospital case, a number of companies have announced that they will require some or all of their employees to be vaccinated. That includes…
Citigroup. The US bank announced in October that employees who have not been vaccinated by Jan. 14 will be placed on unpaid leave. And then fired at the end of the month, unless they are granted a medical or religious exemption.
Delta Airlines. In May, the company said it’ll require all new hires in the US to be vaccinated against the virus (unless they qualify for an accommodation).
Disney. The entertainment company is requiring all new, salaried, and non-union hourly employees to get their shot(s) before they come back to work. It says it’s in talks with the unions to discuss the mandate. (PS: The Walt Disney Company is a minority investor in theSkimm.)
Google. It became the first major tech company to require employees to be fully vaccinated to come into the office. It also said it plans to expand the mandate to other regions in the coming months. (PS: GV (formerly Google Ventures) is a minority investor in theSkimm.)
Microsoft. It’s another tech giant that’s requiring employees to be vaccinated. The announcement — which came in August — also included that vendors and visitors have to show proof of vaccination as well.
Morgan Stanley. The bank announced in June that unvaccinated employees would be barred from its NYC-based offices.
Netflix. The streaming company is requiring vaccinations for the casts of US productions, as well as the people who come in contact with them on set.
Tyson Foods. In August, the company said its 120,000 US-based employees will need to get jabbed.
Uber. In July, the ride-hailing company said employees need to be fully vaccinated before offices reopen, which is expected to happen in January.
Walmart. The largest retailer in the world announced that corporate employees had to be vaccinated by Oct. 4.
The Washington Post. All new and current employees at the newspaper have to show proof of vaccination.
The Pros and Cons of Vaccine Mandates
The debate over vaccination mandates in the workplace raises questions about effectiveness and legality. Here’s a look at both sides of the argument…
The pros: Some experts and agencies have applauded Biden’s efforts to get more Americans vaccinated, saying it will help the country get back to normal sooner. And we’ve seen that vaccine mandates in the workplace lead to more people getting inoculated. See: United Airlines. In early August, when it announced its vaccine mandate for US employees, about 90% of pilots and 80% of flight attendants had received at least a shot. Right before the mandate took effect in October, the company said that 99% of its staff was fully vaxxed. Plus, research shows that getting vaccinated is good for your wallet and the economy.
The cons: Several Republican leaders have said Biden took things too far when he issued a federal mandate. They accused the admin of government overreach. And argued workers should have a say on their vaccine status. States like Montana and Texas have even banned employers from issuing vaccine mandates for workers. Meanwhile, there’ve been concerns about employees quitting rather than getting the shot, leading to staff shortages in places like hospitals and schools. In December, places like HCA Healthcare, Tenet Healthcare, AdventHealth, and the Cleveland Clinic dropped vaccine mandates. The main reason? Staff shortages, which were caused by the mandates.
Whether you support or oppose vaccine mandates in the workplace, experts say they could be more complicated than it sounds — and potentially lead to lawsuits.
A mandate could essentially force a company to closely monitor employees in the office and create tension. An expert shared this example with The New York Times: "When you see an employee without a mask, are you going to run back to HR and verify that that person really was fully vaccinated?"
Another problem is vaccine inequity. While many Americans have gotten at least one dose of the vaccine, some face barriers when trying to get a vaccine. The racial and ethnic vaccine gap is closing in the US, but there’s still work to be done — and systemic racism in health care likely isn’t helping.
The CDC has also reported that vaccination rates are higher in urban counties than rural counties, which may face issues like fewer pharmacies or unreliable internet. The EEOC says employers should keep vaccine equity issues in mind if requiring employees to be vaccinated, and that "some employees may be more likely to be negatively impacted by a vaccination requirement."
COVID-19 vaccine mandates in the workplace have now reached every corner of the country. And while many employers are choosing to require vaccination for employees to return, it's important to remember that this issue is not as cut and dry as it might sound. If you feel comfortable speaking to your HR team about your thoughts on an office-wide mandate, reach out to make sure your voice is heard.
Updated on Jan. 13 to include the latest on the federal gov’s mandate for large businesses and health care workers.
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