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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