Companies Staying Mum on Potential for Vaccine Mandates

Public health experts have warned for months about the possibility of vaccine hesitancy thwarting efforts to control the Covid-19 pandemic. Polling conducted as late as October found that only half of Americans intended to get vaccinated. Even though the public now appears more receptive to the vaccine, companies are still treading lightly when it comes to the possibility of requiring employees to get vaccinated.

Guidance issued in December by the Equal Employment Opportunity Commission grants companies a decent amount of latitude to mandate vaccinations for employees. Exceptions include making accommodations for employees with religious objections or those covered by the Americans with Disabilities Act. However, filings with the Securities and Exchange Commission – or the lack of them, to be precise – indicate many companies aren’t exercising that authority yet.

It’s easy to understand why not. First, the supply of vaccine is limited at the moment, and health authorities are putting the elderly first in line for jabs. That means most people in the workforce now can’t actually get their hands on any doses. Further, a vaccine mandate might not be the best medicine for company morale. Consider the uproar in pockets of the country over mask rules and other Covid-19 mitigation efforts. Even employees who intend to get vaccinated might consider a mandate to be an intrusion into their private lives, and note that some politicians already view fighting vaccination mandates as a winning issue.

Most important, though, companies are probably loath to put anything on the record in SEC filings that could provide fodder for lawsuits. For example, attorneys at the law firm WilmerHale pointed out in a memo to clients that implementing a requirement before all employees are eligible to be vaccinated could trigger discrimination claims. Meanwhile, polling suggests about 25% of Americans still say they don’t intend to get the vaccine, so widespread mandates would assuredly lead to waves of employee litigation around the country. Few companies would willingly hop into that briar patch before it was necessary.

Of course, just because companies aren’t going ahead with vaccination mandates—a just-released survey confirms that only 8% of organizations plan to require vaccination of returning employees—doesn’t mean they won’t in the future. Assuming the vaccine proves to be an effective safeguard against contracting and spreading Covid-19, it stands to reason that vaccine hesitancy in the U.S. will decline in the coming months. At a certain point, the benefits of a mandate would likely outweigh its reputational and operational risks.

Until then, look for companies to continue providing incentives for their employees to get vaccinations, as opposed to requiring them. A growing number of grocery and retail chains, for example, are offering additional pay to employees who get vaccinated. That type of opt-in strategy feels like companies’ path of least resistance for the time being.