A new survey by Willis Towers Watson released this week indicates that nearly 72% of U.S. employers do not plan on requiring Covid-19 vaccination prior to re-entering the workspace. This is a fascinating finding, especially as the trajectory of vaccination numbers in the U.S. has been on a steady decline.
Although case counts in the U.S. have also been declining since the mass rollout of vaccines began for the general public, many experts fear that not enough people are getting vaccinated quickly enough, given the rising presence of variants and viral mutations worldwide.
To add to the list of things to consider, many companies are planning to reopen in the coming months and are grappling with a challenging decision—can and should offices require employees to be vaccinated against Covid-19? And if so/not, what does this potentially entail?
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Given just how unprecedented this pandemic has been, Covid-19 brought with it many “gray areas” across different aspects and has completely upheaveled all sense of what “normal” is. One of the most critical issues that experts are confronting is the question of liability when it comes to requiring vaccinations in the workplace. Scholars on both sides of the aisle were equally perplexed when the Equal Employment Opportunity Commission (EEOC) stated in a guidance updated as of May 2021 that “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below.” The EEOC does add that “In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.”
Albeit this official recommendation by the EEOC, it is noteworthy to recognize that just because there is a government sanctioned guidance or law, it does not mean that the law will not be broken or challenged. In fact, one can likely expect that over the course of the next decade, there will be hundreds if not thousands of court cases regarding Covid-19 and all of its related issues, many of which will undoubtedly involve workplace issues.
The confusion for companies is straightforward: how will employees react if they do mandate vaccines? Will employees be unhappy, regardless of what the EEOC says? And if companies decide not to mandate vaccines and leave the choice completely upto employees, what does this entail? What happens if there is a massive breakout of infection at a workplace? Can companies be held responsible for not doing more to protect employees in the office?
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The Centers for Disease Control and Prevention (CDC) has provided relatively robust guidance for businesses and employers regarding preventing the spread of Covid-19 in the workplace, including specific recommendations on how to “Prevent and Reduce Transmission Among Employees,” testing in the office, and maintaining “Healthy Business Operations.”
But all of this takes significant time, effort, coordination, and money. Workplaces are not only feeling pressure to keep up with the recovering economy and booming demand for services, but now they must invest a significant amount of resources in a new Covid-19-era workplace. Employee safety campaigns and training sessions will have fully renovated meaning to them. Workplace sanitation will require physical investment to ensure social distancing, proper ventilation, and adequate cleanliness, among other things. There will also have to be significant investment for testing employees, providing for flexible work schedules, and preparing for contingencies incase of infection breakouts or other public health scenarios. And if this is what it takes to protect employees, then companies should undoubtedly make these initiatives a top priority. But how will employers know how much is enough? What standard should companies use to prepare, given that this entire situation is unprecedented?
Although there are perhaps no specific right or wrong answers to these issues, it is critical to note that these are the somewhat paradoxical questions that companies (and schools, institutions, and likely every other organization worldwide) are facing, especially at a time where the economic and job market is already relatively fragile. Indeed, the conundrum emerges in balancing the safety of employees while also giving them autonomy over their own healthcare and lifestyle choices. Certainly, this enigma will likely be the source of a significant amount of debate and litigation in the coming months and years, as both workers and organizations struggle to navigate relatively uncharted seas.
The content of this article is not implied to be and should not be relied on or substituted for professional medical advice, diagnosis, or treatment by any means, and is not written or intended as such. This content is for information and news purposes only. Consult with a trained medical professional for medical advice.
