Employers Struggle With Mandating COVID-19 Vaccine

Employers are walking a line as fine as a hypodermic needle on whether they should make COVID-19 vaccines a condition of employment.

Early in the pandemic, it seemed there were two types of people: Those who ran to the vaccine and those who ran from it. Now, employers struggle with how the two camps affect the work environment.

It’s a sticky wicket.

Legally, employers can mandate vaccines for their workforce and many large companies have, including Tyson Foods, Facebook, Google and Microsoft.

Donnie King, president and CEO of Tyson Foods, said in a statement to employees, “We did not take this decision lightly. We have spent months encouraging our team members to get vaccinated – today, under half of our team members are. We take this step today because nothing is more important than our team members’ health and safety, and we thank them for the work they do, every day, to help us feed this country, and our world.”

For awhile, employers and employees questioned the legality of mandating a vaccine that is not fully approved by the Food and Drug Administration. Currently the vaccines available have Emergency Use Authorization, but not full approval.

According to Olivia Hankinson, a labor and employment attorney at Troy-based Kerr Russell, “For the purposes of employers mandating, there’s not a difference between mandating an EUA or a fully approved vaccine.”

Hankinson pointed out there’s no federal or state requirement for a mandate, so “there’s no legal obligation at this point.”

“Employers should keep in mind: Are your employees still remote? Are they coming in at all? Will they need to return quickly?” Hankinson said. “If they’re still remote, it might weigh against mandating a COVID vaccine. Are your employees public facing or interacting with employees at another facility? Everyone’s workforce is going to be different. I strongly encourage employers to reach out to their legal counsel to chat through the specifics.”

It is also important for employers to keep an eye on what the Occupational Health and Safety Administration recommends, especially the general duty clause.

“The general duty clause requires employers to provide employees with employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees,” said Hankinson. “If an employer is found to have violated the general duty clause, it could result in a penalty of up to $7,000.”

However, human resources experts advise a cautious approach.

“Employers need to ask themselves why they want their team vaccinated and look at the bigger why. Is it to create a safer environment? We call it welcome and safe,” explained Beth Kelly, president of HR Collaborative in Grand Rapids.

Lisa Struck is a business partner with HR Collaborative. What does she advise clients?

“I would say, ‘Do you really want to mandate?’ Proceed with caution, especially in the talent market now. Employees have a lot of choices,” Struck said. “If you’re mandating, people may choose to leave, so be prepared for those types of conversations. Also, have a business reason such as it aligns with your mission, vision, values. Then, open up for conversations, but move slowly.”

There’s no easy answer. Some employers note a buildup in animosity in the workplace. Vaccinated employees are frustrated with unvaccinated employees and blame them for any setbacks. For now, Struck and Kelly are seeing clients rehashing masking and vaccination messaging from the spring.

Hankinson recommends adopting a vaccination policy in writing, so employees know how to appeal, and employers can manage expectations.

“A lot of employers I work with are still hesitant to impose mandatory vaccine policies, but I think that will always be the case. Who knows how it will turn out years down the road?” said Hankinson.