Should businesses mandate that staff get the COVID vaccine?

When the Pfizer and Moderna COVID-19 vaccines became available to healthcare workers in December, hospitals and nursing homes didn't expect pushback from employees. But an estimated 30% of healthcare workers are now expected to refuse the shots, according to health officials.

"What do you do if your own workers refuse the vaccine?" asked Michael Balboni, executive director of the Greater New York Health Care Facilities Association, a nonprofit serving the needs of long-term-care facilities. "Do you just take people off the schedule if they refuse? Can we require them to take the vaccines?"

Updated guidance from the Equal Employment Opportunities Commission issued Dec. 16 did not necessarily provide clarity. It stipulated that an employer can lawfully exclude a worker who cannot be vaccinated due to disability or religious convictions from the workplace if it cannot provide reasonable accommodation.

The guidance gave employers the option of a vaccine mandate, but implementing one comes with myriad complications, Balboni said.

The business community has been pondering its options in ensuring a safe workplace, but compulsory vaccination is not at the top of the list, said Kathryn Wylde, president and CEO of the Partnership for New York City.

Office professionals are not known for anti-vaccine sentiments, so employers aren't very concerned about them declining the vaccine, Wylde said. Additionally, this segment can largely opt to work from home, so it might not make a huge difference if some staffers choose not to get the shots, she said.

In the retail sector, concerns vary, especially when it comes to workers who interact with the public, Wylde said. She recounted that a large retailer she spoke with said it would recommend that its employees get the vaccine and facilitate their doing so but would not mandate it.

Similarly, Northwell Health, the largest private employer in the state with 60,000 workers, considered requiring employees to get the vaccine but ultimately decided against it.

"We recognize that we work with vulnerable populations and we need to keep our employees and patients safe," said Maxine Carrington, the health system's deputy chief human resource officer.

But Northwell ultimately decided that a heavy-handed approach was against its workplace culture and would be counterproductive to compliance, she said.

In December the health system conducted a survey on vaccine sentiment within a limited pool of employees and found 60% of its workers wanted it, 37% were unsure, and 3% said they would not take it. Northwell sought to address the uncertainty, and after an education and publicity campaign, the rate of unsure employees came down, Carrington noted.

"People tend to have a 'You take it first and I'll see how you do,' mentality," Carrington said with a laugh.

She pointed out that a hardline approach could lead employees to leave. "Workers might think, If you're going to force me to take it, I'll go work for someone else who won't force me," she said.

Andy Pallotta, president of the New York State United Teachers, a union that represents 600,000 educators, agreed that workers should be given the right to choose whether to be vaccinated and encouraged to do so at the same time.

"We believe [all education professionals] should be given priority access to the COVID-19 vaccine should they choose to receive it when it becomes available," he said.

A vaccine mandate could be resisted by labor unions. Although it's unlikely a pre-COVID-19 collective-bargaining agreement would have covered a pandemic, any new issues that arise are negotiable, said Chamtouli Huq, associate professor at the City University of New York School of Law.

Unions would want to be involved in the conversations on vaccines, as ultimately their goals of protecting the workplace align with the employer's, said Pat Kane, executive director of the New York State Nurses Association.

Despite the EEOC guidance, there are still gray areas. Employers have to consider whether a vaccination is a business necessity and the legal implications of enforcing such a requirement. A business owner who wants to mandate vaccinations would want to be given proof one was taken. And any time medical information has to be collected, potential liabilities are triggered, Huq said. Legal pitfalls could include the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Health Insurance Portability and Accountability Act (better known as HIPAA) and even the Pregnancy Discrimination Act, she said.

"It could be possible that a worker is trying to become pregnant and hence declines the vaccine, and there are federal, state and city protections for that worker," Huq said.

Although the city's Commission on Human Rights has not commented specifically on the EEOC guidance, its definition of a disability tends to be broad and has historically offered favorable protection to employees, Huq said.

Employers should consider less intrusive solutions before considering mandatory vaccines if the intention is to keep the workplace safe, Huq said. Measures such as temperature taking, symptom monitoring and mask wearing can still be required even after vaccines are available, she said.

After all, a vaccine does not magically make the workplace safer, Kane said.

"People will eventually come round to taking the vaccine with time and education," she said, "and until herd immunity is achieved, it is important not to take a punitive approach."