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As More Employers Push for Vaccination, Experts Cite Need for Paid Time Off

Mandatory or not, many workers consider vaccination a prerequisite for the return to the office. How should employers handle the Covid-19 vaccine?

(CN) — The post-vaccine, pre-business as usual limbo is likely to stretch into the fall, as many employers weigh questions about how to manage the return to in-person work.

Top of mind for some companies is whether to require employees to get a Covid-19 vaccine. A few that have done so are already seeing legal challenges, despite the majority of employees saying they want the comfort of knowing that coworkers have been vaccinated. 

Whether through mandates or other methods, it may be that companies are uniquely positioned to encourage vaccination rates, picking up slack after a monthslong government-led campaign has plateaued

The country is now on the verge of falling behind federal vaccination goals. President Joe Biden’s plan to get 70% of American adults at least one dose by July 4 now looks like a long shot. 

That’s due to wide variation across states; while more than a dozen states have met the 70% mark already, other states lag, like Mississippi, which is on track to fall short of 50% by Independence Day, AP reported

Dr. Georges Benjamin, executive director of the American Public Health Association, said Biden’s goal may still be within reach. But we would need to pick up the pace to get there. Around a million vaccines are being delivered each day — though the number has dipped as low as 400,000 — and the daily rate needs to rise to about 2 million in order to get on track. 

Think of July 4 as a “touchpoint,” Benjamin told Courthouse News in a phone interview. 

“Once we reach that — you know, it’s not a magic number — we’re going to have to then set a new goal,” he said.  

When Biden set his goal pertaining to adults, for instance, the Pfizer vaccine was not yet approved for kids ages 12 and up. So the country may next set its sights on vaccinating younger people and making sure everyone who got a first dose shows up for their second. 

Benjamin said that while vaccine hesitancy accounts for some of the people who haven’t yet gotten vaccinated, the hard-to-reach groups include people who are homebound, have severe mental or physical disabilities — raising potential consent issues — or are in confinement. 

Many others just haven’t gotten around to it, though. That’s where employers may be able to step in. 

Office Vax: Mandates and Incentives

There’s good reason for businesses to promote vaccination. For one, as epidemiologists have pointed out, reining in the public health emergency caused by the coronavirus doesn’t stop the virus from disrupting business.

Most employees also say they want to know that their co-workers are protected. In a survey conducted by Harvard Business School Online, 71% of respondents said they are hesitant to go back to the office until everyone is fully vaccinated. 

Mitigating risks, for some companies, means requiring Covid-19 vaccination as a condition of employment — or to attend in-person classes, in the case of students. 

Some companies, as well as universities, are already making the move. (Courthouse News has a mandatory vaccine policy for its staff.) 

Houston Methodist Hospital was an early adopter of a Covid-19 vaccine mandate. It is also the subject of a lawsuit filed by more than 100 staff members at the end of May challenging the policy. 

Similar lawsuits have arisen in other states. In California, a group of teachers and counselors are suing the Los Angeles school district, and a former deputy in Durham is taking on the county sheriff’s vaccine policies. 

Whether the lawsuits have a shot in court remains to be seen, and as Courthouse News previously reported, employment lawyers have their eyes on the Houston trial. 

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The hospital workers’ complaint cites the Nuremberg Code, created after World War II to prevent horrific medical experiments like those committed in Nazi concentration camps. 

The Houston employees, represented by attorney Jared Woodfill, focus on the fact that the FDA has yet to fully approve the coronavirus vaccines. Workers accuse the hospital of “forcing its employees to be human ‘guinea pigs’ as a condition for continued employment” in their complaint. 

Essentially, they are setting up a wrongful termination, or public policy-type claim, since they now face suspension if they don’t get vaccinated, explained Elizabeth Tippett, associate professor at the University of Oregon School of Law. Those kinds of cases often deal with whistleblower or consumer safety claims. 

To prove their case, the Houston workers would need to point to existing laws that support their position, and ask the court to intervene as a matter of public policy. 

However, the Equal Employment Opportunity Commission recently said it's legal for employers to require vaccination for in-person work, as long as they comply with the reasonable accommodations provision of the ADA and Civil Rights Act, and don't offer coercive incentives. 

“Any time that you, as an employee, are arguing ‘I should be protected from termination because my position is strongly supported by public policy,’" Tippett said during a phone interview, "that legal argument is undermined if there is another law that is exactly on point, that says that what you’re doing is not supported by public policy.”

“Obviously, there’s other public policy considerations that are also at play, such as protecting patients from getting Covid, protecting coworkers from getting Covid,” she added, “and there’s plenty of public policy and laws out there that suggest that that’s an important public concern.” 

Once the FDA does approve at least one of the vaccines currently authorized for emergency use, which could happen in September, health experts say more companies are likely to instate vaccine mandates. 

Short of a requirement, employers can use more subtle methods to encourage workers to roll up their sleeves. 

Paying workers for the time it takes to get vaccinated, or easing shift coverage, can make a difference. Companies including Trader Joe’s, Dollar General and Chobani have offered employees four hours of pay, on top of paid time off. 

As Tippett wrote in a recent piece for The Conversation, companies can also make it a nuisance to avoid vaccination, using systems already in place. Think of how human resources personnel remind workers to complete mandatory online training or submit benefits documents. 

“That could mean automated reminders, followed by personalized reminders from human resources, and eventually a phone call,” Tippett wrote. “At some point, it becomes more of a hassle to avoid the vaccine than to get it.”

Looking Toward Fall 

Despite the vast improvement in the state of the pandemic since this time last year, discussions about post-Covid workplaces still occur in the future tense. 

It’s likely we’ll see movement toward in-person work in the fall.

“I think one of the big factors is whether schools are going to be open full-time,” Tippett said. 

As long as schools are only open part-time, “there’s going to be a substantial part of the workforce that can’t actually go to the office,” given the difficulty and expense of finding all-day childcare.  

Working moms have shouldered much of the burden while working remotely.

"They’ve grappled with a 'double shift' of household responsibilities, mental health challenges, a more difficult remote-work experience, and concerns about higher rates of unemployment — particularly among mothers of color and single mothers," according to a report from the management consultant McKinsey & Company.

Overall, the company reported that 71% of fathers said working from home improved their wellbeing, compared to 41% of mothers.

In the coming months, Tippett predicts a “slow trickle back" to the office.

Last year, many companies took the lead of big technology corporations, like Google and Twitter, which signaled the shift when they sent employees to work from home.

But Tippett suspects most companies will be forging their own paths ahead when returning to the office. 

Varied vaccination rates, and potentially varied Covid rates come fall, support the idea of individual businesses making their own determinations, as does the variety in physical layout of offices, stores and other establishments. 

“Businesses, employers, customers, employees are so different, I think it makes sense for companies and nonprofits to just make their own choices,” Tippett said, as long as the choices are well-communicated with workers and involve employees in the process. 

“Also, as government stops regulating workplaces,” Tippett added, “businesses are going to have to start to take the reins again… but I do feel like they’re more confident about what they need to do.” 

In addition to publicizing what safety precautions are in place, Dr. Benjamin said, employers should think about reminding people of developing science on how you can and (usually) can’t get infected with the coronavirus. 

In the early days of the pandemic, concern centered on fomite transmission, which involves surfaces. Many became wary of doorknobs, groceries or even pet fur. Person-to-person transmission has surpassed those fears, and regular office cleaning is likely to be enough, with people still frequently washing their hands and using sanitizer as needed, Benjamin said. 

Post-vaccination, to sit in a conference room with your colleagues, masks likely won’t be necessary. 

But they also shouldn't be stigmatized, Benjamin noted. After all, individuals may choose to keep wearing a face covering to protect against diseases other than Covid-19, like the flu. 

“At the end of the day, it’s all about making sure that people get vaccinated,” Benjamin said. In bringing the pandemic to a halt, vaccines remain the “best tool we have.”

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