Dive Brief:

• As employers debate how to respond to the ongoing roll-out of COVID-19 vaccinations, a recent survey by management-side firm Littler Mendelson found only 6% of respondents planned to require that all employees get vaccinated once shots are readily available and/or the U.S. Food and Drug Administration grants full approval.
• Fewer than 1% of respondents said they had already mandated vaccination, according to the Feb. 9 results. However, 43% said they were "unsure" but "still considering the possibility" of a mandate. A majority, 79%, said they were concerned about resistance from employees who are not in a protected category, but who would refuse to get vaccinated. Littler surveyed more than 1,800 U.S. in-house lawyers, HR professionals and C-suite executives.
• Other concerns about mandates included the potential impact on morale as well as legal liability regarding adverse reactions to a vaccine.

Dive Insight:

Employers will balance a wide range of concerns and viewpoints as they decide whether to mandate COVID-19 vaccination or encourage vaccination through education, incentivization or a combination of these approaches.

In December, Richard Edelman, CEO of public relations and marketing consulting firm Edelman, wrote a letter discussing a 2020 virtual summit of CEOs held by Yale University in which 71% of attendees said they would be in favor of mandatory vaccination of their employees "so that the world can recover more quickly" from the coronavirus.

Despite the public health significance of vaccination, employers have a few reasons to be cautious about issuing mandates. One of these reasons — a mandate's impact on employee morale and company culture — is reflected in Littler's survey results. These concerns may not be unfounded; in a recent survey of workers by people analytics firm Perceptyx, 53% of respondents said employers should not require vaccination, and 43% said they would consider leaving their jobs if they were required to be vaccinated.

That employers in Littler's survey listed morale and culture as their top two concerns about mandates, rather than legal or liability concerns, is "a telling sign of the unprecedented environment we're operating in," Barry Hartstein, leader of Littler's COVID-19 vaccination working group, said in a statement accompanying the results.

There are compliance issues at play, however, particularly with respect to federal law. The U.S. Equal Employment Opportunity Commission (EEOC)'s guidance on COVID-19 vaccinations permits employers to require that employees provide proof of vaccination, and the agency said employers may be permitted to exclude from the workplace individuals who are unable to receive a vaccine under certain circumstances. But employees may be exempt from such requirements if they are unable to receive a vaccine due to a disability or a sincerely held religious practice or belief.

Additionally, if a group of employees protests COVID-19 vaccination and refuses to be vaccinated, that could constitute protected concerted activity under the National Labor Relations Act, Hartstein previously told HR Dive.

Most public statements from organizations about vaccination policies seem to lean heavily toward the adoption of vaccination incentives rather than mandates. Food manufacturer Chobani, one of the latest examples of this trend, announced last month it would cover up to six hours of time for employees to get vaccinated. An interesting exception is law firm Davis Wright Tremaine, which said it will both provide paid time off for staff to receive a vaccine as well as require proof of vaccination from employees to enter office or attend events, Law360 reported.

The pace of the U.S. vaccination roll-out, which varies state by state, has also proved to be a challenge for employers. Projections vary as to when vaccines will be generally available to most of the country's population. In a Feb. 16 interview with CNN, National Institute of Allergy and Infectious Diseases Director Dr. Anthony Fauci said he expected large portions of the U.S. population to be able to receive a vaccine between May and June. But the timeline to actually complete vaccinations for the majority of the population could be longer. "I don't think anybody disagrees that that's going to be well into the end of the Summer," Fauci said.

Meanwhile, business groups including the Society for Human Resource Management have called on EEOC to offer additional guidance about the extent to which employers may incentivize vaccination. Employers with essential workers can utilize a toolkit provided by the Centers for Disease Control and Prevention that includes informational slide decks and letter templates designed to help employers communicate with such workers about COVID-19 vaccines.