With the White House announcement in September about federal vaccine requirements, the president urged large employers to also require vaccination for their workforces. President Biden expressed frustration with the unvaccinated, but the administration stressed that the requirements are working as evidenced by the 90% increase in job postings requiring vaccination.

Although federal vaccine requirements aren’t universal as they only apply to federal contractors and subcontractors, large private employers and large entertainment venues are strongly encouraged to require proof of vaccination. State mandates are varied and some allow exemptions and testing and masking alternatives to vaccination. Montana actually prohibits private employers from mandating vaccination.

Many areas are deciding vaccine mandates at the local level. With the Pfizer vaccine gaining Food and Drug Administration approval and leaving experimental status behind, more private businesses are requiring vaccination.

Significant Ways the Vaccine Mandate is Changing the Hiring Landscape

COVID vaccination issues have created additional workforce administration consideration for employers, including hiring policies and processes. Federal Equal Employment Opportunity laws do not prevent employers from requiring employees to be vaccinated to enter the workplace, as long as Title VII and the Americans with Disabilities Act provisions are followed for reasonable accommodation.

Additionally, employers can require proof of vaccination but that documentation must be kept separate from personnel records. This adds some extra steps in hiring, employee communications, and record-keeping.

Another layer of the vaccine mandate is incentives and penalties to encourage vaccination. Requiring new hires to be vaccinated, offering gift cards for proof of vaccination, offering to pay for testing, and using vaccination status in bonus determinations are just some of the ways employers are pushing vaccination of their workforces.

Employers have to decide whether to administer vaccinations versus encouraging employees to use third party administrators such as pharmacies or clinics. Employer-administered vaccination creates an issue of avoiding any coercion with incentives because of pre-vaccination disability-related screening questions.

Employers also have to remain aware of being fair with incentives with unvaccinated employees due to disability or religious reasons, although this can be handled on a case-by-case basis with alternative ways to earn incentives.

As employers face both cooperation and opposition to imposing vaccination mandates, they must be aware of legalities of the Americans with Disabilities Act when asking about vaccination issues. Legal professionals say asking about vaccination issues is usually permissible but employers should be careful with follow-up questions that could reveal disability.

How Employers Will Have to Adapt to the Vaccine Mandate

Human Resource Executive discusses the Committee for Economic Development survey of business leaders that found that more than half support the vaccine mandate, although many are worried about losing employees by requiring vaccination.

Employers are advised to prepare for the coming mandates by preparing a vaccine or testing policy, determining any federal government contractor or subcontractor status, and staying vigilant for changes to requirements because of COVID-19 variants.

HR experts remind employers to be careful about how they communicate vaccine mandates, staying transparent, communicating early and frequently, and being clear about mandate reasoning, incentives, and penalties.

Legal and Practical Considerations

Vaccination mandates, whether required for federal contractors or voluntarily put in place by private businesses, come with legal and practical considerations. Practical considerations center around communications about vaccination mandates.

Legal and HR professionals like Engage PEO’s Sadie Banks urge employers to be sure to put their mandate communications in writing. While emails and meetings are good ways to communicate, the mandates should be in writing and have a process to field questions and clarifications. Banks advises leaving politics out of communications but explaining President Biden’s new rule clearly.

Ben Granger of Qualtrics recommends giving employees time to understand vaccination communications, get vaccinated, or comply with the mandate if refusing and resigning. He cautions against abrupt implementations to avoid alienating employees. Employers should also communicate after the mandate deadlines have passed about compliance if employees are fired for transparency.

Moving Forward

The vaccine mandate is posing choices and decisions for employers navigating the pandemic hiring landscape. Deciding whether or not to require vaccination, whether or not to offer incentives to vaccinate if requiring them, whether to vaccinate onsite or encourage employees to use third parties, and watching for new virus developments and legalities surrounding vaccination mandates will be important finishing up 2021 and moving forward.

Many large employers are already requiring proof of vaccination for employees returning to their facilities. Employers feel the pressure of difficult hiring decisions and additional administrative procedures because of applicant and workforce vaccination status. Business leaders want to be legally compliant and respectful of everyone involved but want to protect their workforces.

Not all employers are firing unvaccinated employees. Quest Diagnostics encourages vaccination but is not imposing the mandate on its employees where it is not state mandated, feeling it could cause a disruption in its services that would have a countrywide effect on healthcare. Though Quest has complied with vaccine mandates in states that require it, California and Oregon, they try to assist employees who they’ve had to terminate. Quest CHRO Cecilia McKenney says following the law has resulted in loss of some employees with expertise and knowledge that is now gone.

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