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Most employers plan to incentivize workers to get the vaccine — but some will require it

About two-thirds of employers said they plan to incentivize workers to get the Covid-19 vaccine. If that doesn’t work, 44 percent will mandate it.

Most employers plan to incentivize workers to get the vaccine — but some will require it

As Americans who have been waiting for the Covid-19 vaccine can now more easily get one, thorny questions are arising for employers regarding what to do about those who can’t — or won’t — get vaccinated. Human resources experts say there are legal and managerial ramifications — and the stakes are high for companies to get it right.

The level of distrust regarding the vaccine is a primary hurdle for employers, said Robert Simandl, an attorney at the law firm of von Briesen & Roper. “The resistance to the vaccination is a bit surprising,” he said. “I’m surprised by the assertion that it’s not safe or somehow it’s a government ploy to harm certain people. The disinformation has been my biggest surprise.”

A new survey from Arizona State University funded by the Rockefeller Foundation found that U.S. employers are taking a combination of a carrot-and-stick approach to employee vaccinations. About two-thirds said they plan to incentivize workers to get the Covid-19 vaccine. If that doesn’t work, 44 percent told surveyors that they plan to mandate vaccination, compared to 31 percent who said they will encourage it but not make it a condition of employment.

About two-thirds of employers said they plan to incentivize workers to get the Covid-19 vaccine. If that doesn’t work, 44 percent will mandate it.

An earlier survey of HR professionals conducted by the Society for Human Resource Management yielded fairly similar results, although the questions were phrased a little differently: 60 percent of survey respondents said they would not mandate employee vaccinations, and among that pool of respondents, roughly three-quarters said they planned to recommend that workers get vaccinated.

Employers in sectors where mandating is more prevalent include care and academia. A handful of hospital and care systems around the country have implemented vaccine mandates for staffers, as have a number of higher educational institutions. The University of California issued a press release last month announcing a policy proposal that would require students, faculty and staff who planned to be on-site at any University facility to be vaccinated by the start of the fall semester. “Vaccination is essential for the safety and well-being of the community,” the school said.

Other industries, such as restaurants, retail and travel, that require people to work together in close quarters or interact with the public might be more likely to consider mandating vaccination, said Amber Clayton, director of the SHRM Knowledge Center.

The outlook is different at small businesses, which are more likely to have fewer resources to commit to potential litigation as well as closer connections between upper management and rank-and-file workers. A survey conducted by the National Federation of Independent Business, a small-business trade group, found that while close to half said they would encourage employees to get vaccinated, only 3 percent said they would require it.

"Taking a heavy-handed approach could backfire by sending a message about the company culture more broadly."

Taking a heavy-handed approach could backfire by sending a message about the company culture more broadly. “The other thing to consider is whether or not requiring the vaccine will help or hurt with your recruiting efforts,” Clayton said. “There could be some challenges with recruitment and retaining employees,” she said.

Whether a pro-vaccine stance would attract or alienate workers could vary based on the job, location and demographics of the labor pool. So far, opinions appear to be split roughly evenly: A recent SHRM survey of American workers found that 52 percent would support their employer mandating that employees be vaccinated.

John Ho, a labor and employment attorney and chair of the Occupational Safety and Administration practice at the law firm of Cozen O’Connor, said the emergency-use status of the vaccines could be dissuading some employers from mandating their use, a stalemate that could change once the vaccines receive full FDA approval, something Anthony Fauci, the White House chief medical adviser, said could take place “very soon.”

“It puts us all in unclear waters,” Ho said. “Once one of these goes permanent, I think, more companies will be comfortable in mandating it,” he predicted. But even with a stamp of approval from the FDA, Ho said the issue is fraught enough that employers should take the time to consider the impact of whatever policy they want to implement, Ho said. “This is an important enough issue that you should have a written policy.”

Even offering incentives such as cash to encourage employees to get vaccinated could be legally risky, said Kelly DuFord Williams, lawyer and founder of Slate Law Group. “You’ve got to be careful by what you mean by encourage,” she said, since workers — especially in lower-paying positions — might feel they can’t afford to pass up a financial incentive.

An appeal to the greater good, on the other hand, could elicit a more favorable response.

Simandl said: “I get very few conversations about mandating vaccination. Most employers are really taking the position that this is something they want the employees to embrace themselves as a part of a greater good for their business communities. That’s really been the driving influence here. They are looking for every way possible to encourage individuals to make decisions based on the and the value to the vulnerable population. That’s where I’m seeing significant compliance opportunities.”

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