Loyola University Chicago School of Law, JD 2022
Over 40.3 million Americans have already received at least one dose of the Covid-19 vaccine with a current average of 1.67 million doses administered per day. With a falling infection rate and the vaccine rollout entering a new stage, employers are reexamining their plans to safely return to the office.
However, most employees cannot safely return to work at the virus’s current transmission rate and until their communities achieve herd immunity, which occurs when a large enough portion of a community obtain an immunity to the disease and transmission of the virus is unlikely. Experts estimate that at least 70 percent of the American population will require resistance to the coronavirus to achieve herd immunity. Additionally, there remains a troublingly high number of individuals skeptical of the Covid-19 vaccine. Studies have found an estimated 20 percent of Americans are unwilling to accept the vaccine. While the vaccine is still not widely available to the public, employers should make every effort to ensure their employees receive the Covid-19 vaccine prior to having them return in-person.
Vaccinations not yet triggering return
When the pandemic first began, companies believed their office shutdowns would be relatively short, expecting employees to return in the summer. A Labor Day reopening turned into January 2021, and now companies such as Discover and Facebook have already stated that their employees will continue remote work from home until at least this summer with some working remote indefinitely.
The return-to-office rates varies widely across the country with Dallas and Houston with work force return rates over 35 percent while New York City (13.3 percent) and San Francisco (12.5 percent) lag behind. Widespread vaccination seems to be the only way to safely bring workers back. Therefore, employers should establish a process to ensure their employees are vaccinated.
On December 16, the Equal Employment Opportunity Commission (“EEOC”) stated that employers may require their employees to receive the vaccine before returning to work. Under the Americans with Disabilities Act of 1990 (“ADA”), employers may impose a qualification standard “that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” The EEOC opinion follows Supreme Court precedent going back to 1905 which allows states, under their police powers, to impose reasonable regulations that are necessary to protect public safety and health. Under the EEOC’s guidance, unvaccinated employees would constitute a direct threat to exposing others and, in some instances absent a medical or religious objection, may be fired for failing to comply with their company protocols.
In order to mandate the vaccine, the ADA requires that covered employers grant a reasonable accommodation for any employee with a disability or religious belief preventing them from receiving the vaccine. The EEOC defines a reasonable accommodation as a change in the work environment that allows an individual with a disability to have an equal opportunity to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment.” Some reasonable accommodations employers may grant include restructuring schedules, acquiring or modifying equipment.
Alternatives to requiring vaccination
However, a carrot and stick method may prove more successful in convincing individuals to get the vaccine. Employers mandating the vaccine must “prepare and train their human resources personnel in fielding, responding to, and documenting requests for accommodations, as well as how best to engage in the interactive process with employees who request accommodations.”
Instead, many large employers are choosing to encourage and incentivize employees to get the vaccine rather than requiring it. For example, Emerson Electric Co. is considering making contributions to its employee’s 401(k) retirement funds rather than mandating its 90,000 employees receive the vaccine. Other companies are offering gift cards or discounts on health premiums for getting vaccinated. Much of these same incentives already existed in previous years for those receiving the flu shot.
Ultimately, with the goal of safely returning to work and ending the pandemic, employers should encourage their employees to get the vaccine rather than mandate compliance. In some cases, these small incentives have proven to be more effective than mandating vaccination. Research by Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law at Georgetown Law School, has found that even “forcing employees to sign a form explaining why they don’t want to take a vaccine may significantly increase compliance.”