Employers’ interest in covid-19 vaccine mandates is waning in the wake of the abolition of federal measures, according to a recently published survey.
While employers have increasingly implemented covid-19 vaccine mandates or test requirements over the past year, only a small percentage who do not have such policies say they plan to make them mandatory, according to a March survey of 1,275 in-house C-suite executives. and staffed by the Attorney General’s Office Littler Mendelson PC.
Overall, 41% of respondents said they have vaccine policies in place, compared to 21% in the 2021 survey. Only 1% plan to implement mandatory vaccine or test policies, and 2% say they are unsafe.
Even when the proportion of employers who introduced policies almost doubled since the most recent survey in August 2021, the largest proportion of respondents in the most recent survey – 56% – said they will not implement mandates or tests unless required by law.
Still, the increase in the number of employers introducing policies is surprising given that the Occupational Safety and Health Administration lifted vaccine and test requirements in January, said Devjani Mishra, a New York-based shareholder with Littler Mendelson, who conducted the survey in March. OSHA’s actions followed a decision by the US Supreme Court which found that the vaccine mandate for all employers with 100 or more employees is unconstitutional.
But many of those who started putting mandates in place before the shutdown likely continued with that policy, Mishra said.
“There were people on the road,” she said, setting out her policies pending OSHA requirements and others expected to require mandated federal contractors and subcontractors. The federal contractor requirement was questioned in several states.
“Those things stopped, but those companies went on,” Mishra said of employers who continued with mandate plans.
The rise in employer mandates may also be due to careful risk management, says Jeffrey Adelson, General Counsel at Adelson McLean APC in Newport Beach, California.
In many states, if someone is determined to be infected with covid-19 at work, “it is presumed to be a claim for employee compensation,” Adelson said. “You have assumptions about compensation in different states.”
“Good loss control must look at issues of worker compensation and spending, along with everything else they look at. They want to take every opportunity they can to reduce the number of covid cases,” Adelson said.
Kimberly Forrester, partner with Clyde & Co. in San Francisco, agreed that companies are looking closely at how they handle covid-19 risk, which could have increased the number of seats. “As more workplaces have had employees return in early 2022, employers have had to evaluate their policy on mandates and test requirements,” she said in an email.
Employers who draft vaccine and test policies are “likely motivated by a combination of staff opinions, compliance rules and risk reduction,” Forrester said.
“Many employers have conducted surveys of their employees to better understand employees’ preferences and comfort levels,” she said, while determining the number of vaccinated and unvaccinated employees.
The survey showed that 74% of those surveyed track or plan to track employee vaccination status.
Demonstrating a willingness to reduce the risk of covid-19 infections at work is important for employers, whether their employees are vaccinated or not, Adelson said. Employers have been sued by workers who claimed they were not doing enough to prevent employees from being infected with the virus, he said.
Whether it is by requiring the vaccine, giving people time off to get it or encouraging other protective measures, employers are showing a willingness to mitigate the exposure, said Mr. Adelson. It can reduce the risk that an employer could be charged with intentional misconduct due to absence of care, he said.