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Can Employers Mandate COVID Shots?

August 4, 2021 By

Just when many of us were beginning to feel that COVID vaccinations were improving the landscape of our lives in 2021, we now have the delta variant surge to worry about. This variant is much more infectious – perhaps as contagious as chickenpox, according to an internal CDC document. 

On July 27, the U.S. Centers for Disease Control and Prevention (CDC) issued a recommendation that everyone in areas of high COVID-19 infection rates wear masks in public indoor spaces REGARDLESS OF VACCINATION STATUS.

As of that same date, 49 percent of Americans have been fully-vaccinated, while 7.8 percent of people have only been partly vaccinated against COVID-19. Whether herd immunity, widely considered to be between 70 percent and 90 percent, is possible in this country is now debatable. As mentioned earlier, the variants that continue to evolve, along with the persistent hesitancy of vaccinations will make herd immunity difficult, if not impossible.

Dr. Kevin Kavanagh, a member of Infection Control Today’s® Editorial Advisory Board, recently wrote: “The virus that we’re currently dealing with has a lot of room to continue to mutate, and to become more infectious and more lethal.” His last few statements, however, were most alarming to me: “I am convinced this virus is about one or two iterations away from completely avoiding the vaccine. And remember, we have the lambda variant and the kappa variant which are sitting out there in the wings, waiting for immunity to drop and possibly cause another wave.”

With this latest delta variant surge, more employers are justifiably looking at options to either strongly insist or incentivize their employees to get vaccinated. Should employers use the stick or the carrot to move the needle on vaccinations?

Do Employers Have a Legal Right to Mandate COVID shots?

Overall, can employers require that employees get vaccinated for COVID? The quick answer is “yes.” 

Recently, the U.S. Department of Veterans Affairs, the State of California, New York City, hospitals and nursing homes, colleges and universities have introduced COVID-19 vaccine mandates into the workplace, including masking protocols. This past week, President Biden announced that federal employees and contractors must be vaccinated or be tested once or twice a week. 

Government agencies and private employers can require their employees to get vaccinated as a condition of working there. Employees can certainly refuse to be vaccinated, but they have no right to legal protection. However, there are a few exceptions. Employees with medical or religious reasons may seek reasonable accommodation under civil rights laws, but such accommodation must not constitute an undue hardship for the employer. These employees could get tested weekly, wear masks while in the office, or work remotely. 

For those employees who are unable to meet these exceptions, they will likely need to seek different employment opportunities.

On July 6, the Department of Justice Office of Legal Counsel issued an opinion that federal law does not stop private businesses or public agencies from mandating COVID vaccines. This opinion comes two months after the Equal Employment Opportunity Commission (EEOC) released guidance (May 28) that said U.S. employers could require all employees who physically enter an office space to get vaccinated.

Google and Facebook have recently implemented requirements that any employees returning to the office must first be vaccinated. Google is also extending its work-from-home policy until October 18. Should this policy change, employees will be given at least a 30-day notice.

Can States Ban Vaccine Mandates?

The EEOC guidance has pushed lawmakers in some states to introduce legislation prohibiting businesses from mandating COVID-19 vaccinations as a condition of employment. According to the National Academy for State Health Policy (NASHP), Iowa had two bills introduced that would ban employer mandates, but neither was enacted. 

Non-Mandate Strategies that include Incentives

This discussion is really centered around using the carrot or stick approach. Mandating vaccinations at the workplace serves as the stick, while using carrots to incentivize employees to get vaccinated may serve as the middle ground for many employers. Short of mandating that workers are fully-vaccinated and having mask protocols, what options do employers have to keep employees safe while at the workplace? 

One option is to mandate vaccinations for certain classes of employees, and then offer carrots to all other employees. As an example, Walmart announced that all of its corporate staff employees and regional managers must be fully vaccinated by October 4. However, for store and warehouse employees, Walmart is offering a $150 vaccine bonus (carrot).

The May 28 EEOC guidance provides updated and expanded technical assistance on how the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) affect establishing policies when offering incentives to employees to get the COVID-19 vaccine. In short, the employer may offer an incentive to employees for voluntarily obtaining a vaccine that is administered by the employer or its agent if the incentive is not so substantial as to be considered ‘coercive’. 

Unfortunately, the EEOC guidance does not state a standard for what would be considered ‘coercive’, which may deter employers from arranging onsite vaccinations to provide an incentive. However, the EEOC guidance states no specific limit on incentives for vaccinations that are NOT administered by employers or their agents, which can actually provide a reasonable level of comfort for employers who wish to offer cash or gift card incentives.

The EEOC clarified that, under GINA, the employer may offer employees incentives for getting vaccinated, but the employer cannot acquire genetic information while administering the vaccines. Additionally, employers should have protocols in place to ensure that vaccination information is kept confidential – such as proof of vaccination – and be stored separately from regular personnel files. 

RECOMMENDED READING: The Society of Human Resource Managers (SHRM) provided an article on four key takeaways from the EEOC guidance.

Summary

Should employers use a stick or carrot to increase a vaccinated workplace? It really depends on the organization’s culture, its geographical location, and the level of trust that an organization has with its employees. Similar to the elongated pandemic, the answers to this Rubik’s Cube are evolving and somewhat complicated – but need immediate attention.

In an abundance of caution, it is recommended that businesses seek legal guidance about any potential associated hurdles of mandating vaccinations, in addition to considering other strategies in lieu of fully implementing a vaccine mandate.

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Filed Under: David P. Lind, Lindex Tagged With: , , , , , , , , ,

New Trend or Passing Fad?
Smoking Rates will Drop with COVID Pandemic

July 1, 2020 By

This blog is the FOURTH in a series regarding the ‘unintentional consequences’ of the COVID-19 pandemic. As our lives have been abruptly altered due to social distancing requirements – both at home and in the workplace – unplanned ‘disruption’ of previous normal activities could permanently replace sacred elements once believed to be unyielding to any change. But COVID-19 just may have dictated new approaches to how we live and work.

In late April, over one month into the COVID-19 pandemic, a piece from Kaiser Health News (KHN) was published discussing how the virus may prompt some smokers to quit their habit, primarily to avoid respiratory risks. Past research has shown that smoking makes it more difficult to fight off respiratory infections. Because of this, one can reasonably assume that smoking will increase health complications, if infected by the virus. It was, therefore, a natural topic to cover how the pandemic may favorably shape smoking habits in the U.S.

Since publication of the KHN article, however, the science between smoking and COVID-19 is not as clear as one might think. Please read on…

Smoking and COVID-19

One early study about COVID-19 health factors suggests that smokers are 14 times more likely to need intensive treatment compared with nonsmokers. Such findings push doctors to use this connection between COVID and smoking, as yet another reason for people to quit this habit.

Yet, using the coronavirus as a valid reason to quit smoking, could possibly backfire. New research from UCLA’s psychology department shows that stigmatizing smokers may actually INCREASE their urge to smoke. Known as a ‘stereotype threat,’ people become anxious about being identified in a negative way and, consequently, end up confirming the behaviors they are trying so hard to disprove.

As we learn more about the impact of this virus on humans, more studies will likely ensue on how smokers are impacted by newly-evolved viruses. Perhaps the development of a reliable and widely-available antibody test could reveal connections between smoking and the coronavirus.

Countervailing Study – Smokers are LESS likely to contract COVID-19

There is contradictory evidence that smoking may actually keep smokers from contracting COVID. French researchers believe that nicotine protects cells from coronavirus attacks. In fact, the Pasteur Institute found that four times fewer smokers contracted COVID than non-smokers.

In lieu of this finding, the French government banned online sales of nicotine replacements – nicotine gum and patches – and warned that pharmacies that dispense treatment for tobacco addiction must limit the amount issued per person. The concern is that “excessive consumption or misuse in the wake of media coverage” may push people to inappropriately consume nicotine replacements to combat COVID.

How true is the French finding? There is much skepticism. More information is needed to learn the truth about nicotine and COVID. For now, a helpful piece can be found in USA TODAY regarding the facts associated with nicotine and COVID.

Conclusion

Given the varied lifestyle behaviors of individuals, some smokers may decide to curtail the habit, while others will maintain the status-quo regardless of having conclusive evidence that their health is at greater risk by holding on to this habit.

As we have found in the past few months in our country, science can play an important role for those who embrace well-documented research, but it can also be discarded by others. In 2017, smoking rates in Iowa mimicked national rates – 17.1 percent of adults smoked. Smoking rates have decreased over the years, and whether the pandemic will accentuate this trend in the future is, at best, uncertain.

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Filed Under: David P. Lind Tagged With: , , , , ,

New Trend or Passing Fad?
Reliance on Foreign Drugs

May 27, 2020 By

This blog is the THIRD in a new series regarding the ‘unintentional consequences’ of the COVID-19 pandemic. As our lives have been abruptly altered due to social distancing requirements – both at home and in the workplace – unplanned ‘disruption’ of previous normal activities could permanently replace sacred elements once believed to be unyielding to any change. But COVID-19 just may have dictated new approaches to how we live and work.

NOTE: Running the risk of writing a xenophobia-like piece about foreign countries, this particular blog is intended to address a serious national security issue that has been neglected for at least two decades.

To borrow a phrase from the ‘Apollo 13’ movie, “Houston, we have a problem.” No, wait, we have a BIG problem!

If the COVID-19 pandemic has taught us anything, it’s that we must not become too dependent on outside countries for drugs and certain medical supplies – such as masks, gloves, ventilators and other personal protective equipment (PPEs). These dependencies can seriously undermine our health security, which is critical to our national security. But, over the past two decades, our country HAS increasingly become more reliant on foreign countries, especially China.

Interestingly, the pandemic just may serve as the catalyst to help remedy this problem.

The China Situation

A major event occurred in the year 2000 that triggered the U.S. to rely more on China for the supply of medications. Congress and the White House agreed to grant China access to the U.S. market, and permitted China to join the World Trade Organization. Shortly after, China developed the penicillin and Vitamin C ‘cartels,’ by basically replacing American manufacturers through the dumping of low-cost product into our country. As a result, American manufacturers could no longer compete against China’s government-financed manufacturers. China’s monopolizing behavior is also commonly found in many other manufacturing products from various industries. Pharmaceutical dependence on China can be found in an earlier blog that I wrote in 2019, “Dependence on China – The ‘Weaponization’ of our Medicine.”

In 2019, The U.S. Food and Drug Administration (FDA) estimated that 80 percent of active pharmaceutical ingredients (APIs) and 40 percent of finished medications were manufactured overseas, primarily in China and India. Most generic drugs, including antibiotics, accounting for more than 90 percent of all U.S. prescriptions, are imported from India, but India imports 70 percent of their active ingredients from China.

Having a high concentration of our medicine coming from just one country, no matter the country, can become a major strategic risk to the health and security of our population. To function, the U.S. (and other countries) rely on having appropriately-manufactured medicine of high-quality with safe ingredients, reasonably-priced, and readily available. In fact, by ceding the manufacturing of medicine elsewhere, any country could be held hostage by a new warfare that has never been waged in the past – the weaponization of medicine.

During a congressional testimony in October of last year, Janet Woodcock, the FDA’s director of the Center for Drug Evaluation and Research, pointed out that drug production has moved out of the U.S. into other countries.  According to Woodcock, “The FDA doesn’t know whether Chinese facilities are actually producing APIs, how much they are producing, or where the APIs they are producing are being distributed worldwide, including in the U.S.” In short, the FDA does not know how dependent the U.S. is on China for its drugs!

National Emergency Order – Stafford Act

Addressing the pandemic on March 13, President Trump declared a national emergency under the Stafford Act, a 1988 law that presidents can use to declare disaster areas after storms and other natural disasters. This declaration granted that certain medical products and supplies, such as disposable gowns and drapes, be excluded from the 25 percent tariff imposed by the U.S. since September 24, 2018, on $200 billion goods imported from China.

These tariffs have increased concern about relying heavily on a single market (e.g. China) for critical medical and pharmaceutical products, forcing many U.S. organizations to rethink their China-based supply chains. It’s additionally anticipated that the Administration is preparing an executive order that would require certain essential drugs be made in the U.S. This executive order is believed to streamline regulatory approvals for “American-made” products and encourage the U.S. government, including the Departments of Defense, Health and Human Services and Veterans Affairs, to buy only American-made medical products.

To maintain independence from foreign control, streamlining regulatory approvals for American-made products and more detailed labeling of the origin of drug products could help facilitate American production at home.

Conclusion

Whether the novel coronavirus will be the tipping point for drug makers to adopt new technologies and resist the offshoring trend is yet to be determined. Preventing an interruption in the supply of vital medications and other medical products that save lives and treat diseases – whether during pandemics or in routine care – is a matter of national security. As our population ages, Americans will become even more dependent on medications indispensable for treating heart disease, cancer, stroke – and viruses. Mobilizing resources to mitigate the supply shortages is a strategy that must be paramount to our government and all policymakers.

The COVID-19 pandemic serves as a wake-up call for our government and the pharmaceutical industry to take notice – and act. If this particular opportunity is somehow tragically missed, then policy malpractice has been undeniably committed. Regardless of the political leanings one may have, we can all agree this should not be a red or blue issue – but an American one.

Next Week’s Discussion:  Fear of virus will propel smokers to quit.

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Filed Under: David P. Lind Tagged With: , , , ,