With the Covid-19 vaccine rollout steadily gathering steam, and an overwhelming desire to get back to business, companies face a difficult choice: should they force employees to get vaccinated? And if not, how can they encourage workers to roll up their sleeves? Bloomberg Businessweek spoke to Kevin Troutman, a Houston-based lawyer who co-chairs the national healthcare practice of the law firm Fisher Phillips. This interview has been condensed.
Could an employer face some liability if its workers aren’t vaccinated?
Workers comp laws are the exclusive remedy for illnesses and injuries contracted in the workplace. But employers also have to be concerned about following OSHA guidance, and we expect that OSHA is going to be issuing some COVID-specific standards. They’re going to at least say, I think, make the vaccines available to your employees, and it will be a violation if then you fail to do it. You could be fined and penalized and, you know, OSHA can hand out some substantial fines. So it can be it can be pretty significant.
What should employers do then to encourage employees to take the vaccine?
One thing that is really important is to share reliable objective information with employees, to try to dispel any misunderstandings or misconceptions that are out there. Ideally, the information should come from local healthcare providers — maybe arrange for a doctor in the community to just come out and maybe talk to their employees, answer some questions and help employees to understand the issues better.
If leaders of the organization believe that vaccinations are the right thing to do, and they are out there explaining it, and providing reliable information, and even setting an example and saying, “Hey, I’m getting vaccinated,” I think those things will help get employees more comfortable with taking the vaccine.
What about offering incentives for getting vaccinated?
A lot of employers think, “Well, I’ll just offer some money and, and get people to take the vaccination, and it’s as simple as that.” Unfortunately, it’s not as simple as that. All medical information is supposed to be treated as confidential — you’re not supposed to get that information and then use disability-related information to discriminate against an employee.
The thinking has been that if an incentive is large enough, that might make some employees feel pressured to disclose medical information in order to qualify for the incentive. On January 7, the EEOC issued a proposed rule that you can only offer what they call a “de minimis incentive” — like a water bottle or a gift card of modest value, which we think is around $20 or $25. Those rules were put on hold as part of the transition in administration and then withdrawn, so right now the EEOC stance is in limbo.
Now, a lot of employers are saying, “we’ll pay you for your time to get vaccinated, and maybe allow two hours or something like that.” I think this is a good approach. The employer can say it’s not an incentive. If the EEOC disagreed, the next thing you do is say that’s not enough to be coercive.
What are the risks to requiring your employees to get vaccinated?
Well, if you’re able to work through the people who say they need an accommodation, because of disability or religion, then the risks are you’re going to have 20 to 40 percent of your workforce just very upset, very distracted and not as productive as they would be. Do you want to have to fire them? You probably could legally, but as a practical matter, do you want to fire that many employees?
Is that worse for your company than having 20 or 40 percent of your employees not vaccinated?
I think each company has to decide. It depends a little bit on what you do, and how much interaction do you have with the public. One place it would make a lot of sense to mandate vaccines would be health care, where you’ve got some responsibility for the health and safety not just of yourself and your employees, but of people who are placed in your care. But even in the healthcare industry, I’m not seeing a huge rush to mandate vaccines. They’re making it available. But they’re not mandating it, whereas they have required flu shots.
Have you seen any particular industries that are inclined to mandate vaccinations?
We did a flash survey among clients and people who maintain regular contact with us. We got about 700 responses, and the agricultural and food production industry was at the top of the list among our respondents as to who was expecting to mandate the vaccination. But that was still only about 18 percent of the group.
How might this conversation be different in, say, July or August?
I think the legal issues are going to stay largely the same unless we get more guidance on incentives. From a practical point of view, by mid summer, we should see that a lot more people have been vaccinated. And we’re also going to have more data and more information to tell us more about side effects, and effectiveness of the vaccination. And we may know more about the extent to which being vaccinated prevents a person from transmitting the virus.
All of which will enable us then to improve our messaging to our employees, about why the vaccine makes sense and the risks, or lack of risks, associated with it compared to the benefits. And that’s going to give businesses a better idea of what’s feasible and what they’re going to do.
By: Robb Mandelbaum