More employer vaccine mandates are coming after Pfizer's full approval
"Employers are getting more comfortable with the idea of mandating a vaccine," Littler Mendelson's Barry Hartstein said.
An increasing number of companies will implement COVID-19 vaccination policies in the coming months, now that one of the available vaccines has full FDA approval, despite knowing that they’ll encounter employee pushback and even perhaps litigation.
According to a report published by Littler Mendelson on Monday, 46% of employers polled in August said they are considering a vaccine mandate for employees.
The survey found that 21% of companies plan to mandate COVID-19 vaccination, or have already done so. When the law firm published a similar report in January, only 10% of companies said they planned to mandate vaccination.
Related: Employers key to ending pandemic: Vaccinations imperative, not a personal choice
“I think the delta variant has scared a lot of people. It is a new wrinkle that has been thrown in the process,” said Barry Hartstein, a shareholder at Littler Mendelson in Chicago who helped author the report. ”Masks are being mandated and employers are getting more comfortable with the idea of mandating a vaccine.”
The Food and Drug Administration’s approval of the Pfizer vaccine, Hartstein said, may be making more employees comfortable with getting the vaccine.
However, most companies, Hartstein said, are still encouraging employees to get the vaccine over mandating it. Some companies, including Google, Facebook, United Airlines, Moderna and Pfizer, have mandated vaccinations for returning employees.
“A lot of employers are waiting for someone to step forward to do it. They want to see if certain employers are able to successfully implement it,” Hartstein said.
The survey shows that 75% of respondents indicate they will get push back from employees who are not in a protected class—those with religious or health exceptions—from the vaccine mandate. The survey shows that 64% of employers are concerned about the legal issues that come with enforcing the vaccination requirement. Hartstein said employers will likely face litigation from employees who ask for a religious exemption who have not invoked a religious exemption before.
“I am concerned that the legitimate exceptions will be abused,” Hartstein said.
A large number of employers, Hartstein said, have indicated that mandating a vaccine would impact their company culture. He said they do not want to play “big brother” with their employees.
The report shows that 60% of employers indicated fears of losing staff and potential trouble attracting new employees as another reason to only encourage employees to get the vaccine, rather than requiring it.
“Some industries are having issues hiring people generally. Will they be even shorter staffed with a vaccine mandate? I view that as a real issue,” Hartstein said.
The survey was given between Aug. 4 and Aug. 12 of this year, and included 1,630 respondents. Just under half of those surveyed were human resources professionals; 35% were general counsel and in-house counsel; 15% were C-suite executives and other professionals.
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