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WORKSPAN DAILY |

With Rising COVID Cases, More Employers Are Implementing Vaccine Mandates


GeorgiNutsov / iStock

As vaccination rates continued to increase and COVID-19 infections and hospitalizations plummeted, employers across the United States had begun their transition back to the office.

However, the emergence of the Delta variant has led to a dramatic uptick in cases across the U.S., which has caused organizations to rethink their return-to-work strategy, including how they view vaccine mandates.

According to the Centers for Disease Control and Prevention, 70.4% of U.S. adults have received at least one dose of the COVID-19 vaccine as of Aug. 6. Though courts have historically sided with employers’ efforts to establish vaccine mandates in their workplaces, many companies have been reluctant to put such rules into effect. As of May, only 7% of companies had a mandatory vaccination policy, according to a study by Tinypulse.


Large organizations such as Cisco, DoorDash, Facebook, Google, Tyson Foods, Walgreens, United Airlines, Walmart and others have announced that they will require all or certain portions of their workforce to be vaccinated against the coronavirus.

Mark Kittaka, a labor and employment attorney at Barnes & Thornburg LLP, said that while there are some exceptions, employers are within their rights to require vaccination.

“Employers do have an obligation to provide a reasonable accommodation for employees with a documented disability under the Americans with Disabilities Act (ADA) as well as for a sincerely-held religious belief under Title VII,” Kittaka said. “To date, only Montana has passed a state law preventing any discrimination in the terms and conditions of employment based on COVID-19 vaccination status. Mandatory vaccination is becoming more prevalent with health care employers as well as state agencies or contractors in an effort to protect their employees.”

While some companies have opted for a vaccine mandate, others such as Morgan Stanley, Goldman Sachs and Wells Fargo are simply pushing their return-to-office plans back with the caveat that inoculation will be expected once office work resumes.

It’s unclear whether there will be a domino effect in terms of mandates, but Kittaka said increasing cases coupled with state and local governments reintroducing mask mandates makes it far more likely for employers within those jurisdictions to follow suit.

“OHSA (Occupational Safety and Health Administration) will likely adopt the CDC’s recent position on requiring even vaccinated individuals to wear face coverings in an indoor setting so that will also put increased pressure on employers to get their workforces vaccinated,” Kittaka said. “If an employer could show that it was 100% vaccinated, then face coverings would not be required as long as its employees are not dealing with the general public.”

For organizations unwilling to go as far as a vaccine mandate for their workers, there are other options at their disposal. The Equal Employment Opportunity Commission (EEOC) greenlit vaccine incentives for employers, meaning organizations can offer cash bonuses and other incentives to their employees to encourage vaccination, so long as the incentive is not so substantial that it would be considered coercive.

“If the employer is voluntarily providing paid emergency sick leave under the extension of the Families First Coronavirus Response Act (FFCRA), the employer may take a tax credit on their payroll taxes equal to such paid leave,” Kittaka said, noting the FFCRA is only available for employers with less than 500 employees. “Many companies are providing a half day paid leave to get the vaccine or providing a financial incentive like $100 bonus regardless of size.”

Beyond financial incentives, employers — following CDC guidance — could require unvaccinated employees to wear a face covering in the office, while vaccinated workers would be exempt. 

Ultimately, the onus of safety falls on the employer, which makes the decision of vaccine requirements dicey. However, for organizations that are cautious about losing employees amid a tight labor market over such requirements, Kittaka noted that can cut both ways.

“It is certainly a consideration, but the failure to at least encourage vaccination could result in greater absenteeism from your current workforce from increased COVID-19 infections further exacerbating the staffing issue,” he said. “OSHA regulations mandate that an employer provide a safe workplace under the General Duty Clause so if an employee files a complaint and the company is completely failing to enforce any face-covering requirement without proof of 100% employee vaccination, they are subject to citations and penalties. 

About the Author

 Brett Christie is the managing editor of Workspan Daily.


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