Employers reluctant to mandate vaccinations
Employers generally have a right to require vaccinations — but so far, many Baltimore-area workplaces are choosing not to require their workers to get vaccinated against the virus that causes COVID-19.
Many employers are reluctant to mandate the shots given the limited availability of the vaccines, as well as new legal questions to ponder as a result of the fasttrack process used to approve them by the U.S. Food and Drug Administration.
Some, though, are encouraging workers to get inoculated by offering incentives or running education campaigns.
Under Armour, Amazon and Giant Food are among the area companies that say the vaccine is voluntary for their employees. Some retailers are offering financial incentives to those who get vaccinated. Several local hospitals are not mandating the COVID-19 vaccine, even though they require their workers to get annual flu shots.
The issue is a new one for many businesses.
While those in the health care sector typically require vaccinations for a number of viruses, the pandemic means employers across an array of industries — hospitality, retail, manufacturing and food production to name a few — are grappling with how to protect the health of workers, clients and consumers.
Legally, employers are allowed to require workers to get vaccinated, with some exceptions for religious and medical reasons. But with COVID-19, most don’t have that option yet because of a lack of availability, said Michael Goettig, New Yorkbased counsel and employment attorney for aw firm Davis Wright Tremaine.
“Once the availability becomes less of an issue, then employers will be looking at their options,” Goettig said.
“Most employers are still taking the approach of strongly encouraging employees to get the vaccine once that becomes available to them.”
Complicating the situation is the vaccines’ unusual approval, which was granted quickly amid the dangerous spread of COVID infections.
The two vaccines now in use are currently approved only for emergency use during the pandemic.
“We have never faced circumstances where employers were faced with decisions about offering, mandating or creating access to a vaccine approved purely for emergency use in the middle of a pandemic,” said Carrie B. Cherveny, a chief compliance officer in employment law and employee benefits for Chicago-based insurance brokerage Hub International.
The direct threat of
COVID-19 has opened the door for employers to take unprecedented steps such as temperature and symptom screenings as employees come to work.
Employers now must decide whether to mandate or encourage vaccinations or merely educate their employees. “The majority of our clients are in the educate camp,” Cherveny said.
Salisbury-based poultry processor Perdue Farms is using an internal education campaign to urge workers to get vaccinated. Educational videos and signs in multiple languages have been placed around plants, with information geared toward dispelling vaccine myths, spokeswoman Diana Souder said.
Perdue also mailed letters to workers’ homes explaining the vaccine and plans for on-site distribution.
The company has been advocating for plant workers to get priority in state and national distribution efforts, she said.
The company, which has 500 processing plant workers in Maryland, expects vaccines to be available in a matter of weeks at most locations. The shots will be given free of charge. Many of the health care workers
at Perdue’s on-site wellness centers already have been vaccinated, Souder said.
In recent guidance issued to private employers, state officials said businesses are not currently able to request distribution for a workplace because of the limited supply of the vaccines from the federal government.
But the state said it plans to work with the private sector to broaden the distribution network as supply improves.
Cory Jorbin, a chief compliance officer at Hub who advises business clients on health and benefits laws, said that of roughly 1,000 clients who attended a recent webinar, only about 3 percent said they were imposing mandates. Many simply had no plan.
“Many want to wait and see what my employees choose and how this affects larger populations of people who become vaccinated,” Jorbin said.
In December, the Equal Employment Opportunity Commission issued guidance saying that requiring proof of a COVID-19 vaccine wouldn’t be barred by the federal Americans with Disabilities Act, which limits employers from asking certain questions.
Still, many employers may be reluctant to set mandates because they worry about the implications of workers refusing or leaving.
Those who choose to impose mandates could risk pushback, loss of morale or greater difficulty hiring or retaining workers, Goettig said.
“If an employer draws a hard line as a condition of employment, it may find itself painted into a corner, where they have to discipline an otherwise good employee,” Goettig said.
Retailers such as Dollar General, Aldi, Trader Joe’s and Royal Farms are encouraging vaccines by offering extra pay to workers. Grocery delivery service Instacart is giving eligible contractors $25 stipends.
Aldi and Trader Joe’s are offering employees two hours of pay for each of two vaccine doses. Aldi said it would cover any costs associated with vaccine administration and promised workers would not lose pay for time missed getting vaccinated. Dollar General is offering four hours of pay to workers who get vaccines. Royal Farms will pay a $50 wellness bonus to each employee who gets inoculated through the end of the year.
“Providing accommodations so employees can receive this critical vaccine is one more way we can support them and eliminate the need to choose between earning their wages and protecting their well-being,” said Jason Hart, CEO of Aldi U.S.
Lidl, a grocer with 14 stores in Maryland, is giving $200 in extra pay to employees who get vaccinated, saying it will help workers offset costs associated with getting the shot, such as travel and child care.
Whether incentives work is up for debate. Jorbin believes incentives won’t sway employees who vehemently oppose getting a vaccine.
“And many will get a vaccine anyway,” Jorbin said, “so you may be paying them to do something they would have done.”
Jorbin said some in the hospitality industry have said they intend to encourage employees to get vaccinated so they can market their hotels and restaurants as “safe” places to stay or dine.
Goettig expects employers may have to make adjustments until more people can be vaccinated, such as having some or all employees work remotely.
As the pandemic and knowledge about it has shifted, so has his advice to employers, sometimes from day to day.
“What we might be recommending today might be different from what we are recommending months from now,” he said.
Eventually, when the population reaches herd immunity, it may become less critical to require everyone to have a vaccine.
“There will be some point where a single, unvaccinated worker will not be as much of a threat,” he said.
Public employers also are considering the vaccine question. Across the country, some cities and counties are mandating shots for workers.
Last month, the city of Bowie in Prince George’s County issued a new policy requiring employees who have contact with the public as well as other essential staff to get vaccinated.
Both Baltimore and Baltimore County have been vaccinating their front-line workers, but the vaccine is not mandatory for any workers, officials said.
A union for state employees has encouraged its members to get vaccinated, but leaders are frustrated with the lack of availability and slow pace of distribution in Maryland.
Many workers represented by the American Federation of State, County and Municipal Employees work in some of the most high-risk settings, such as state hospitals, prisons and youth facilities where the virus has spread aggressively.
No state agencies have mandated the vaccine for employees, but most union members are opting to get inoculated when they are eligible, said Patrick Moran, president of the union’s Council 3, which represents more than 25,000 people, including at universities and state agencies.
Thousands of members have been infected and 10 have died, he said.
Appointments have been offered in fits and starts, with many workers unable to sign up, he said.
Employees at prisons have been able to go to vaccine clinics set up outside facilities, but distribution to other agencies has been disorganized, he said.
Other than in the prisons, “the state has been very inconsistent about it,” Moran said. “Our members are in the thick of this thing trying to control this thing and not given the proper tools.”
Mike Ricci, a spokesman for Republican Gov. Larry Hogan, said plans are in motion to vaccinate more state employees as more doses become available.
The state is setting aside weekly doses for employees, according to a recent memo to agency heads.
Agencies were instructed to identify staff in public-facing roles with a significant risk of virus exposure and create priority vaccine lists of employees.
The memo noted that vaccination of state employees “is voluntary, and not a condition of employment.”