The widespread rollout of COVID-19 vaccines has certainly been a good development in the effort to end the pandemic. The availability of a vaccine to most of the U.S. population has prompted various forms of the same question to my colleagues and me over the last month: “Can an employer mandate that employees be vaccinated before coming back to work?” As Karin Corbett, my colleague at Offit Kurman, and I discussed on our recent Constructing Leadership podcast though, this is not the right question.
The issues around requiring your employees to be vaccinated are not simple
While there are exceptions for religious and medical reasons already provided for in the law, employers can legally mandate vaccines as a condition of employment in most states. It’s likely safe to assume there will be legal challenges to these mandates in the courts; and some state legislatures might eventually pass laws making a mandate illegal. A better question, however, is whether an employer should mandate a vaccine.
Reasonable minds can fall on both sides of this question; and what an employer—or an employee for that matter—decides to do as it relates to getting vaccinated is a little less important than assessing the consequences on both sides. There are a number of risks that need to be considered before making the decision. By way of example, here are some of the issues worth considering as you ponder a vaccine mandate.
The slippery slope: It’s tricky to pinpoint where the vaccine mandate starts and stops in terms of the group to whom it applies. Mandates like this should generally be applied to and be enforced against every employee; yet the conditions are materially different in the field compared to the office.
There are other thorny issues to ponder once you step onto that slippery slope. Does it make sense to mandate customers and vendors visiting the office be vaccinated from a relationship perspective? What happens if a critical mass of employees refuse to adhere to the mandate and your company cannot function without them? Is there a point to a mandate if the job site has workers from other companies who are not required to get vaccinated?
Like it or not, the vaccine is still an experiment: Any statement that the vaccines are proven safe is categorically false. This is not to say that they are definitely unsafe either. The fact of the matter is that we simply don’t know yet. Vaccines are typically put through vigorous testing by pharmaceutical companies with the oversight of the Food and Drug Administration (FDA). The COVID-19 vaccines were brought to market under an emergency order that allowed for the vaccines to be distributed with fewer steps in that process. This was a good thing in that it allowed them to be distributed to the public faster; but it also comes with the risk that the drug may ultimately prove harmful. If the vaccine later turns out to be detrimental to people’s health, employers have “bought that liability” with a mandate.
A better question, however, is whether an employer should mandate a vaccine.
Employees’ opinions matter: An unhappy workforce is generally bad for business on multiple levels. If a mandate is put in place and a significant number of employees either think it’s unreasonable to mandate vaccination or don’t want the vaccine, an employer risks morale and other issues that create toxicity, which is bad for business. There are other potential pitfalls from an employer-employee relations perspective, including the possibility that you may violate a collective bargaining or employment agreement with your mandate.
There are no guarantees the vaccine will remain available. It took a while for access to the vaccine to be given to the entire population. While it can be easily obtained right now, there is no guarantee this will remain the case. If the emergency order expires or is revoked, many of the protections provided to drug manufacturers to put the vaccines on the market will likely disappear. This could cause the pharmaceutical companies to pull the vaccines from the market or make it so cost prohibitive many won’t be able to afford the vaccines. It’s tough to mandate something to which people don’t really have access.
The vaccine does not guarantee no sick employees: There is a perception by many that the vaccine will eliminate COVID-19 from the work environment. While it is undeniably helpful to be vaccinated, it’s also not a cure all. There are now new variant strains of the virus that the vaccine will not protect against. In addition, a vaccine may not keep the vaccinated person from carrying the virus. The research is still inconclusive. As a result, the idea that a fully vaccinated work force will prevent an outbreak at work is a risky conclusion to reach.
In the end, each employer needs to make their own decision on whether to mandate vaccines. The answers to the above questions and others will depend on a myriad of factors, including the number of employees in the company, how many of the employees in the company travel regularly and where the employees are physically performing their work. A thoughtful risk analysis is important to deciding whether a vaccine mandate makes sense or not. Don’t just assume you should impose one because the option to do so is available.
Josh Quinter is a commercial litigation attorney, with a focus on construction law. He is also a member of the Board of Directors and a department chair at his law firm, Offit Kurman. Active in a number of construction trade and business organizations, he presently serves as the president of the Mid-Atlantic Chapter of the Metal Building Contractors & Erectors Association (MBCEA), serves on the MBCEA national board and is the organization’s general counsel. Contact him at jquinter@offitkurman.com or for more information go to www.offitkurman.com/attorney/joshua-quinter.
