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The Biden administration’s plans to increase vaccination not only sent shockwaves through the many unvaccinated people in the United States, but also the businesses that employ them.
Since the announcement Thursday for federal employees, larger private businesses, and healthcare organizations that receive federal funding, experts have been scrambling to figure out the immediate and long-term implications, how the federal action will be enforced, and the legality of the new policies.
Reactions on social media from businesses, human resource leaders, and employment lawyers have been swift, representing viewpoints from the right, left, and in between:
"The Daily Wire does have more than 100 employees but we won't be enforcing Joe Biden's unconstitutional and tyrannical vaccine mandate. That's it. We'll use every tool at our disposal including legal action to resist." – @realDailyWire CEO @JeremyDBoreing pic.twitter.com/uQy3Fufmmj
— The Daily Wire (@realDailyWire) September 10, 2021
— David Pryzbylski (@DJPLaborLawyer) September 10, 2021
More certain comments came from a reporter for The Dispatch, who tweeted a thread, including:
Vaccine mandates are both common and constitutional, when implemented by proper authorities. There is SCOTUS authority on this dating back more than 100 years, and that same authority has been cited to support COVID restrictions during this pandemic. /2
— David French (@DavidAFrench) September 10, 2021
We're instead dealing with OSHA, a regulatory entity created by act of Congress that Congress has granted really super-duper broad regulatory authority over private businesses. How broad? I'll let @CassSunstein explain /5: https://t.co/FQpSVsg8mq pic.twitter.com/rqJzyEdWlz
— David French (@DavidAFrench) September 10, 2021
Making a Hot Topic Hotter
President Biden’s six-prong plan is seen as a major strengthening of the government’s action on COVID-19. However, vaccine mandates have been growing in popularity in the private sector for months, according to a media briefing sponsored by the Infectious Diseases Society of America (IDSA) held earlier the same day.
Representatives from Delta — the airline, not the variant — and the Society for Human Resource Management (SHRM) outlined this and other trends regarding the “new normal” workplace during the briefing.
When COVID-19 vaccination first become available, about 2% of employers mandated vaccines across their workforce. “Today, we know that it’s 19% of employers who are doing that,” said Alexander Alonso, PhD, chief knowledge officer for SHRM in Alexandria, Virginia.
Perceptions about vaccine protections also appear to be shifting. At the beginning of the summer, less than 20% of employees surveyed supported widespread vaccination, Alonso said. “Now, 63% of the workforce is willing and looking for their employers to mandate total vaccination across their workforce.”
“We’re seeing a big dramatic rise in terms of the workforce seeking out protection, not only for themselves but for their families,” he said.
Although Alonso did not want to speculate on specifics in President Joe Biden’s at-that-time anticipated plan for a vaccine mandate for federal employees, he did say it could set an example for business leaders. “Employers are looking for guidance on what a policy or mandate should look like…and looking for that particular nudge that allows them to do this.”
The briefing’s expert panel also addressed how requirements for vaccination against COVID-19 are not driving a major exodus from the workplace. Also, switching from positive incentives to negative ones can improve vaccination uptake among the most reluctant — at least it appears to be making a difference at Delta Airlines.
Furthermore, to walk the fine line between individual privacy and workforce safety, many companies are not releasing the names of the unvaccinated publicly. However, they do inform managers, who can then keep an eye on workplace behaviors — including requirements that the unvaccinated wear masks and get tested regularly.
Mandates Not Driving Employee Exits
The SHRM represents 1.6 million employers, which allows them to monitor workplace trends and identify effective practices for supporting employee vaccination. Alonso noted that although many employees threatened to leave their jobs if vaccine mandates went into effect, so far, the impact, if any, appears minimal.
Initial data in December 2020 suggested that 28% of workers indicated they would rather leave their job than be forced to take a vaccine.
Now, when the SHRM asks human resource managers, “what we’re seeing is that number is roughly less than two percent,” Alonso said. “So while there is this ‘great resignation movement’…what we’re seeing [is] typically not related to the vaccine.”
Delta Air Lines has actually seen a trend in the opposite direction, said Henry Ting, MD, MPH, chief health officer for the airline and adjunct professor of Medicine at Emory University School of Medicine in Atlanta.
“We’ve seen no employee turnover resignations,” he said during the IDSA briefing. In fact, anticipating a return to more leisure and business travel, Delta started hiring an additional 10,000 employees in June.
Privacy vs Protection
Alonso often gets asked if employers are required to keep the identity of the unvaccinated employees private. Vaccine status in the workplace is not covered by HIPAA [the Health Insurance Portability and Accountability Act Privacy Rule], he said during the briefing, and it is a public health issue.
Nonetheless, he added, “I would never make it public.”
Instead, Alonso’s observed employers “get around [disclosure] in a couple of different ways.” One example is employers requiring the unvaccinated to submit, at their own expense, three COVID-19 test results each week. In some cases, it compels an employee to get vaccinated. Also, “they end up identifying themselves as the unvaccinated workers.”
Another strategy is to limit who knows about the status of employee vaccinations. “Certain employers are actually making that information available to managers — and only the managers — so that they can continue to track whether or not those individuals are engaged in safe workplace behaviors.”
A Move Toward Negative Incentives?
Alonso said an overall trend is a move from employers “not really knowing what to do about vaccination” early on in the COVID-19 pandemic to strongly encouraging immunizations, all “still on the path towards mandating vaccination.”
“The most recent incentive we put in place could be viewed as a penalty or negative incentive,” Ting said. Any of the 20,000 Delta employees who remain unvaccinated, except for those with a religious or medical exemption, will pay a $200 surcharge on their healthcare insurance starting November 1.
The airline is now up to 78% of employees vaccinated.
Ting added that the remaining unvaccinated employees are a heterogenous group. There are people who will never choose to get the vaccine, but there are also employees who are afraid because of misinformation or other reasons.
“Many I think a certain large percentage of that 20% include people who are on the fence, who are waiting to make a decision on their own timeline,” Ting said. “There’s a group of people who simply don’t want to be told what to do They want to gather information and make a decision for themselves with the best information available.”
“I’m trying to continue educating, advocating, and communicating with them about the importance and to accelerate their timeline,” he said.
He recommends against a one-size-fits-all mandate for all employers. Instead, listen to employee concerns, “meet them where they are,” and enlist community advocates to help educate people who remain eligible but reluctant, Ting advised.
In contrast, starting out with a “very hard mandate as your first thing that you do could certainly worsen any disparities or inequities we already have.”
Ting added that encouraging vaccination can be a matter of life and death. “Every person I convince to get vaccinated, who changes their minds, is a potential life saved.”
Legal Challenges Likely in Future
Legal experts are predicting multiple challenges to the new federal policies. Employment lawyer Jon Hyman made the following predictions on twitter:
Will OSHA’s Emergency Temporary Standard (ETS) mandating that all employers with 100 or more employees mandate the Covid vaccine for its employees or mandate weekly weekly Covid testing pass judicial scrutiny? A thread. #OSHA #VaccineMandate #Covid19 1/
— Jon Hyman 💉🧲😷 (@jonhyman) September 10, 2021
Based on a September 9, 2021, media briefing sponsored by the Infectious Diseases Society of America.
Damian McNamara is a staff journalist based in Miami. He covers a…
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