Sept. 10, 2021 — Since the Biden administration announced stronger vaccine requirements for federal employees, larger private businesses and health care organizations that receive federal funding, experts are scrambling to figure out the immediate and long-term implications, how the new rules 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, with many conservative businesses tweeting their intention to not comply with the new vaccine mandates.
Reactions surrounding the legality of the move ranged, with some predicting that legal issues will come about while others expressed certainty that the federal action is backed by strong legal precedent.
More certain comments came from a reporter for The Dispatch, who tweeted a thread, including:
Mandates Already Trending?
Biden’s six-prong plan announced Thursday is seen as a major strengthening of the government’s action on COVID-19, but 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 held hours before Biden unveiled his plan.
During the briefing, representatives from Delta Air Lines and the Society for Human Resource Management (SHRM) outlined this and other trends regarding the “new normal’” workplace.
When COVID-19 vaccines first become available, about 2% of employers mandated them across their workforce.
“Today, we know that it’s 19% of employers who are doing that,” Alexander Alonso, PhD, chief knowledge officer for SHRM in Alexandria, VA, said.
The article from the National Law Review related to this tweet says, in part:
“Many employers have already started to implement mandatory vaccination programs. This became more likely when the FDA provided full authorization for the Pfizer vaccine. With the President’s comments and actions – we can expect a significant increase in the number of employers implementing such programs.
In the President’s words : “This is the ‘Pandemic of the Unvaccinated.’” And, these steps are aimed at ending that circumstance. Whether they will be successful or not will be seen.”
Perceptions about vaccine protections also appear to be shifting. At the beginning of summer 2021, 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,” he said. “We’re seeing a big dramatic rise in terms of the workforce seeking out protection, not only for themselves but for their families.”
Alonso said he expected Biden’s plan to 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,” he said.
The panellists 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.
Mandates Not Driving Employee Exits
SHRM represents 1.6 million employers, which allows them to monitor workplace trends and identify effective practices for supporting employee vaccination. Although many employees threatened to leave their jobs if vaccine mandates went into effect, so far, the impact appears minimal, Alonso said.
Initial data from December 2020 suggested 28% of workers 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 2 percent,” Alonso said. “So while there is this ‘great resignation movement’ … what we’re seeing it’s typically not related to the vaccine.”
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 HIPPA, he said during the briefing, and it is a public health issue.
But, he said, , “I would never make it public.”
Instead, he’s observed employers “get around [disclosure]” in a couple of different ways.
One example is employers requiring the unvaccinated to, at their own expense, submit 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 people managers – and only the people managers – so that they can continue to track whether or not those individuals are engaged in safe workplace behaviors,” said Alonso.
Delta Air Lines does not fall under HIPPA privacy requirements, either, Henry Ting, MD, chief health officer for the airline and adjunct professor of Medicine at Emory University School of Medicine in Atlanta, said.
“And when I say Delta, I’m referring to our airline, and with regards to the current variant, I’ll refer to that as the B.1.617-2 variant,” Ting said.
“We’ve seen no employee turnover resignations,” he said. .
In fact, anticipating a return to more leisure and business travel, Delta in June started hiring an additional 10,000 employees.
A Move Toward Negative Incentives?
Alonso said an overall trend is a move from employers “not really knowing what to do about vaccination” early 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 employees who remain unvaccinated, except for those with a religious or medical exemption, will pay a $200 surcharge on their health insurance starting Nov 1.
As a result, Delta Air Lines is now up to 78% of employees vaccinated.
Ting said the remaining unvaccinated employees are in many ways similar. There are people who will never choose to get the vaccine, but there are also employees who are afraid due to disinformation or for other reasons.
Some Still ‘On the Fence’
“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,” he said. “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 continued.
Ting recommends against a one-size-fits-all mandate for all employers. Rather, , listen to employee concerns, “meet them where they are,” and enlist community advocates to help educate people who remain eligible but reluctant, he recommended.
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 said 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,” he said.
Legal Challenges Likely in Future
Legal experts are predicting multiple challenges to the new federal policies. For example, employment lawyer Jon Hyman made the following predictions on Twitter: