As employers continue to battle staffing shortages and supply chain constraints, many also must contend with another looming issue: vaccine mandates.
Though lawsuits are making their way through the courts, President Joe Biden’s order called for mandates to go into effect Jan. 4 for businesses employing 100 or more workers. Those businesses would have the option to instead offer weekly testing for employees who don’t want to get vaccinated.
The mandate forces employers to wade into an emotionally and politically charged issue as well as draft policies and procedures. Kurt Johnson, a human resource professional and director of business development with KerberRose, says many employers are concerned about how the mandate will affect employee retention.
“With the strong divide as a nation, as a region, on vaccination, employers are very concerned that if the mandates come about and testing is required, that this is further going to create a situation where ... talent that’s there is going to make decisions to leave their current positions and add to the challenge of finding workers,” he says.
Johnson says between the talent crunch and supply chain woes, employers are facing the most challenging situation he’s seen in his 40-year career. Compounding that now is a fear that workers wanting to evade mandates will leave their roles and take jobs with smaller organizations.
Rebecca Kent, an attorney focusing on employment and labor law for McCarty Law LLP, agrees that leaders’ biggest concern is losing good people. “It’s a very political issue. There are a lot of employees who would rather leave their jobs than be vaccinated.”
Amy Beaman, senior HR consultant at Human Resources Consulting, LLC in Green Bay, says when choosing between mandating the vaccine or offer testing as well, companies can evaluate employee sentiments toward vaccination.
“On one hand, a company may have employees that are in favor of the mandate, as it could provide a sense of safety. On the other hand, a company may experience the opposite effect and they could lose a significant number of employees because of a mandate. Understanding the dynamics of the workforce could provide valuable insight,” she says.
Where things stand
Biden’s order has led to multiple lawsuits, including one in a federal appeals court in the 5th Circuit. In mid-November, the court stayed the implementation of the large employer mandate.
The order prevents the Occupational Safety and Health Administration from implementing and enforcing the large employer mandate. The federal agency charged with enforcement cannot do anything in terms of field inspections, audits and penalties until further court order, meaning there will be no one to enforce the OSHA large employer mandate. Thus, there is a reprieve until the issue makes its way up to the Supreme Court for decision, Kent says.
Earlier, Biden had urged businesses with 100 or more workers to prepare for the Jan. 4 deadline of having employees fully vaccinated. After that date, unvaccinated workers would have to submit a negative COVID-19 test result weekly to enter the workplace.
Vaccines are mandatory for federal workers — along with federal contractors with contracts of at least $250,000 — and employees of health care organizations that apply for Medicare and Medicaid reimbursements. Kent says many health care employers have made the move to require vaccination, even if they’re not covered by the federal mandates and/or are eligible to offer testing as an alternative option.
Ambiguity enters the picture when considering the issue of federal contractors and subcontractors and the interplay of the different mandates. The federal contractor mandate applies broadly with no option for testing in lieu of vaccination. It applies to contract and contract-like instruments and to remote workers as well as employees who aren’t directly working on the government contract work. There’s an exception for contracts that are solely for the provision of goods, but the scope of that exception is not clear at this time. “There’s a lot of encouragement to go ahead and comply, even in gray areas,” Kent says.
Johnson says that while establishing and communicating procedures will be an arduous task, HR professionals have spent most of the past two years doing just that. He credits his peers along with occupational health nurses and employees who followed guidelines for helping businesses get through the worst of the pandemic.
“For a long time, last year, I would say one of the safest places to be was at your workplace,” he says.
For employers that have a choice, Beaman says it’s a good idea to evaluate the economic impact of mandating the vaccine. For example, if a work environment poses an increased risk of spreading the virus, which could lead to economic losses if multiple people are out due to COVID-19, that could pull in the favor of mandating. Companies that do customer-facing work also may be at greater risk. Conversely, if an organization employs few people and they can be spaced apart or if people can work remotely, that will pose less risk, she says.
“For any company that will have a vaccine mandate (whether voluntary or legally required), we strongly recommend straightforward policies and procedures that are easy to implement and maintain. These policies and procedures should be reviewed periodically and updated as necessary. The communication plan should include educational resources as well as a clear statement about why the mandate is being put into place and how it benefits the employees and the company,” Beaman says.
Maria Nelson, agency director of strategic communications firm Red Shoes Inc., says that while navigating the minefield of vaccine mandates won’t be easy, communicating clearly can help. In fact, now is the time to over-communicate.
It’s important for leaders to let employees know how and when they’ll share information. After they do so, it’s best to follow up with a recap. The communication strategy could include multiple mediums, from videos to emails to in-person meetings to sharing frequently asked questions, Nelson says.
“If employees aren’t sure what’s going on within their company, they’re going to be distrustful of leadership and can be easily lured away by a signing bonus or better benefits. Employees who feel like they have a voice and are kept aware of what’s happening are much more likely to stay with your company longer,” she says.
When considering whether to use a carrot or a stick approach to influence employees’ choices, Johnson says the stick has worked in a lot of past situations, but with workers now holding so much leverage, that may no longer be true.
“The stick may not work as well this time around because of that talent equation. What other choice do they have? If they’re going to see talent walk out the door, they can’t survive. Are they willing to take the fine rather than have to shut doors?” he says.
Kent says employers can consider continuing to offer incentives for vaccination. That can include perks like offering gift cards, paid time off or a health care cost reduction. At the same time, an incentive can’t be something so substantial that it could be construed as coercive, and employers can offer incentives to workers but not to workers’ family members.
Nelson says no matter how a company proceeds, it’s possible to mitigate the negativity that might arise. “Transparency and honesty are key. Your employees understand that this is a divided landscape. Take the time to be human and demonstrate your care and concern for your employees by listening and sharing information over and over again. It’s easy for employees to dislike policies, it’s harder for them to dislike the people who are working hard to keep everyone safe and employed.”
Employers should start planning now
Despite the uncertainty around lawsuits, Rebecca Kent, an attorney focusing on employment and labor law for McCarty Law LLP, says employers should create policies and prepare exemption forms in the event that the mandate proceeds.
“There are a lot of required details to the policy and aspects that will require thought for how to best craft and implement the policy for your particular workplace,” she says.
Kent recommends employers take the following steps:
Get a vaccination policy in place, along with forms for workers to apply for exemptions. Exemptions can be granted for medical contraindication, disability or sincerely held religious beliefs.
Assess how to keep the workplace safe when granting requests for exemption. Recommended protocols include requiring masking, regular symptom checking, social distancing and weekly negative test results for unvaccinated workers.
Determine the procedure for employees who refuse to or cannot comply with required protocols for unvaccinated workers. If a workplace can’t offer an arrangement such as remote work, the employer
must decide what steps it will follow — which could include progressive discipline steps, unpaid leave or immediate termination.
Establish whether the organization must provide paid time off for employees to get vaccinated, along with time to recover from side effects. The large employer mandate requires up to four hours of paid time for each dose of the vaccine and up to two workdays (16 hours) for recovery from side effects for each dose.
Sort out issues around testing if that will be offered as an option. Employers must determine where employees will be tested, whether onsite or at an off-site location, along with what kind of test is acceptable and procedures employees are to follow for reporting results.
Employers covered by the mandate must keep a record of vaccination status for all employees and require acceptable proof of vaccination. They must make sure that workers’ vaccination status, vaccination records, test results and medical information are treated and kept as confidential medical records. This sensitive information must be kept in a separate medical file with restricted access.