Among the limiting factors for employers considering requiring COVID-19 vaccination is attracting and retaining talent and the prospect of employment disputes, experts say.
The call for vaccinations for workers after the U.S. Food and Drug Administration's August 23 approval of the Pfizer-BioNTech vaccine came from several federal entities, including President Joe Biden himself, who called on employers to decide whether to demand the shots.
Even before the FDA approved, a study by the employment law firm Littler Mendelson found that 46% of 1,600 surveyed employers between August 4 and August 12 consider a vaccine mandate stronger, which survey analyst Devjani Mishra attributed to the Delta variant and rising cases.
However, 60% of employers fear possible staff losses. and difficulties in working due to dismissal or resignation of employees who do not want to be vaccinated, the survey found.
"Every employer has to make their own decision based on their own circumstances, manpower and who they can afford to lose … either because they carry out mandate vaccinations or because they do not," said Hugh Murray, Labor and Employment Officer. labor market partner at McCarter & English in Hartford, Connecticut.
“The idea that you would fire someone who is a fairly good employee, or even an excellent employee, sometimes causes employers to back down a bit when they realize that finding qualified people for many of these positions is a tough job, says Murray, adding that the business risks are "probably higher" than the legal risks.
The Littler Mendelson survey confirms that possibility, as 75% of employers said they were worried about opposition from employees who refused to be vaccinated and 68% were worried about the mandate's impact on corporate culture and employee morale.
Several organizations representing the nursing home industry are sounding the alarm about the consequences of an annou statement by President Biden that all nursing home staff should be fully vaccinated.
The American Health Care Association and the National Center for Assisted Living sent a letter to the Department of Health and Human Services and the Center for Medicare and Medicaid Services on August 20, urging the agencies responsible for creating such a policy to provide alternatives to mandate and consider "the potential impact on the profession's already challenging labor situation." Such a mandate will "cause a massive relocation of the nursing profession", according to a joint statement from the organizations.
An increase in litigation for the Equal Employment Opportunity Commission may also be on the horizon.
Amy Blaisdell, lawyer at Greensfelder, Hemker & Gale PC in St. Louis, said the main issue with mandatory vaccine programs is that employers still have to meet exemptions based on "sincere" religious beliefs and medical contraindications.
"I think to some extent that is also what has made employers doubtful," she says. exception is valid. "
Ms Blaisdell added: “Disputes to continue to look for will be suits that come from employers' refusal to grant exemptions for mandatory vaccines, allegations that employers did not properly protect confidential medical information (including vaccine status) and allegations that employees were avenged for their decision or inability to be vaccinated. ”