U.S. employers have known for a while that they can require their employees to get an FDA-approved Covid-19 vaccine. As recently as a couple of months ago, however, most employers weren’t doing that, with a few exceptions in healthcare and on Wall Street that were either celebrated or notorious, depending on your view.

The balance has clearly shifted now.

One survey in February 2021 found that almost 80% of employers chose not to mandate vaccination because their employees were personally opposed to it. As one of our clients put it: “If we mandated, half our workforce would quit.” So the initial stance taken by most employers was essentially an employee relations choice, and employers “strongly encouraged,” but didn’t require, vaccination.

It looks like months of “strong encouragement” didn’t move the needle one way or the other. Our unscientific guess (but one generated by endless discussions with our clients) is that employees who were personally inclined to get vaccinated with or without a mandate got vaccinated, and those who were opposed didn’t—which is to say that, arguably, few were “encouraged” to do anything they weren’t going to do anyway. Result: only about 50% of the US population has been fully vaccinated, according to the CDC.

Enter the Delta variant. Many states are now experiencing high rates of transmission. Overloaded hospitals in under-vaccinated parts of the country are literally rationing care. Though a small percentage, there are also reports of breakthrough infections, a harbinger of small but distinct risks even for vaccinated individuals. In response to increasing rates of transmission, on July 27 the CDC published guidance recommending all people (regardless of vaccination status) resume wearing masks in public indoor settings in areas of substantial or high transmission. On July 29, the federal government—America’s largest employer—set rules for federal workers and contractors requiring verification of vaccination. Unvaccinated federal employees will be required to wear masks, get tested weekly, and face travel restrictions.

So it’s no surprise the private sector has taken note, with a significantly greater number of employers now requiring vaccination. But many more have not yet made that decision. For those that haven’t, the obvious question becomes: how are we supposed to analyze risks to employee safety, employee morale, and the business, in order to figure out whether to mandate or not to mandate?

The Basic Rules on Mandatory Vaccination

Let’s review the basics:

  • Employers can require vaccination, subject to exceptions under state and federal laws that may require an employer to provide accommodations to individuals with disabilities or bona fide religious beliefs that prevent their vaccination.
  • Employers can ask employees for proof of vaccination, subject to any restrictions under specific states’ laws or executive orders.
  • Employers can implement workplace safety standards based on vaccination status. In practice, this often means having different rules for being around other people in and out of the office depending on vaccination status.

But all that only tells you what you can do. It doesn’t begin to address what you should do.

How To Decide

Forget politics: throughout this whole pandemic, the only point of an employer ever following CDC guidance on masking and social distancing, and the only point of ever encouraging or requiring vaccination, was always to reduce the risk of an employee claiming that an employer didn’t do everything possible to protect employee safety.

Example: John comes to a workplace where nobody is vaccinated or wears a mask; John gets infected or takes the virus home and infects his immunocompromised mother-in-law; and whether or not John particularly cares for his mother-in-law (or himself), somebody gets seriously ill, suffers “long Covid” (which is, by the way, now recognized under some disability discrimination laws as a protected category), or dies. John, or John’s estate, then sues his bone-headed employer for not taking basic steps to mitigate an obvious risk to the workforce and/or John’s mother-in-law.

Safety rules are about safety, but they’re also about liability. As with any safety rule, one big goal of a mandatory vaccination program is to create a defense to claims that an employer knew of risks and failed to mitigate them. And the science of Covid-19 risk mitigation is definitive: a vaccinated person is far less likely to get sick, to die, and to infect others, emerging stats about breakthrough infections notwithstanding. We would argue that with the Delta variant wreaking havoc and with mask mandates and social distancing rules remaining difficult to police, erring on the side of absolute caution and taking advantage of the right to require vaccination is, if nothing else, a good and obvious risk management practice.

So what about our client who fears that half its workforce will quit in the face of a mandate? Since losing a workforce is at least as economically damaging as any Covid-19 outbreak, here’s how we would make the call:

  • Unless an employer expects such resistance that a vaccine mandate would turn into a huge employee relations problem, it’s safer to mandate than not at this point. Because of the Delta variant’s transmissibility, and because masks and distancing aren’t fully protective, an employer expecting employees to physically be at work takes less of a risk if it simply mandates vaccination, which is vastly more effective at preventing serious illness/death than masking or social distancing alone.
  • If half your workforce is going to quit, then sure: stick to mask mandates, adhere to social distancing rules, strongly encourage vaccination, and cross your fingers. The economic risk of having half your workforce quit may outweigh the potential economic risk of a few employees contracting Covid—recognizing that employee safety doesn’t have a price tag. In contrast, employers with professional/office environments, that don’t operate in deep red areas of the country, or that have workforces that are already largely voluntarily vaccinated, have far less to worry about. Those employers could reasonably expect minimal and manageable pushback to a vaccination mandate.
  • Because of the considerations in the first two bullets, an avalanche of employers are now mandating, or will mandate by some point in September/October. You may have heard of some of them: United Airlines, Facebook, Cisco, Amtrak, Google, Ford, Netflix, NBCUniversal, Tyson Foods, DoorDash, Walgreens, Walmart, at least half of Wall Street, and many other high-profile private employers. There is a degree of “safety in numbers”: employers considering mandates will have increasing cover that they aren’t the only ones doing it or are somehow a novel “test case.”

Whether implementing a mandatory vaccination program is right for your business or not, it’s always smart wise to consult outside counsel for individualized guidance and recommendations.


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