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

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.”

Follow @NinaPullano

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