Vaccination issue thorny for employers

Balancing safety, rights and privacy could present problems, experts say

Of the many problems confronting Bay Area companies as they move out of pandemic lockdowns and into workplaces of the future, one issue is especially tricky: Do they make their workers get COVID-19 shots?

“The thing that I’m getting the most calls about right now is really, ‘What do we do about vaccinations? Can we mandate that all our employees get vaccinated? If we don’t mandate it, what happens if we have employees who don’t want to return to work unless everybody is vaccinated?'” said Bay Area labor lawyer Sandy Rappaport, who represents companies in matters of employment. “Employers are really struggling with it.”

A host of decisions confront businesses as they reopen offices, from how many employees they will bring in at a time, to reconfiguring interior

spaces, installing barriers, improving ventilation and, in many cases, adopting hybrid models mixing on-site and remote employment. But the question of how to handle people’s vaccination status is perhaps the biggest challenge of all, requiring a balancing act that protects all workers without violating their privacy or beliefs.

The law is clear. Companies can require workers to come into offices and also impose a vaccination requirement as a condition of employment. But just because they can mandate injections doesn’t mean they should, experts say.

“It’s not that easy, hiring and retaining good folks,” Rappaport said. “Do you really want to let people go who are otherwise good employees because they’re not agreeing to comply with your mandatory vaccination policy?”

Apart from health care companies and some universities, most employers are encouraging vaccinations but not requiring them. That’s the policy Google, Facebook and Uber have all adopted. A March survey by commercial real estate company Savills that included more than 100 U.S. tech firms found fewer than one in 10 said they would make vaccines mandatory for returning to the office, although more than half said they were still undecided.

San Jose technology giant Cisco isn’t mandating vaccinations. But in a presentation for suppliers posted on the firm’s website, it said workers who must be in its Bay Area offices now and as it ramps up to higher occupancy will have to be tested weekly for the coronavirus.

Among major Bay Area tech companies, Salesforce is one of the few to publicly release detailed reopening plans. The business-software titan outlined a threestage process that starts this month with “volunteer vaccinated cohorts” of 100 or fewer employees working in designated offices on specific floors in its San Francisco headquarters and in Palo Alto and Irvine. Unvaccinated workers would start coming back to offices in the second stage, Salesforce said, adding that “vaccinations will be encouraged.”

“We’re also not going to ask you to show us your vaccination records,” company benefits manager Katelyn Johnson said. “It’s easier to just make sure the workplace is safe through a testing strategy, which many, many companies across the U.S. are also doing.”

Though employers can require proof of vaccination, a worker’s status must be treated as confidential medical information that’s only accessible on a “need to know” basis for business management or operations, Rappaport said.

Part of the challenge for employers is that workers may assert rights to exempt themselves from the shots, Rappaport said. Medical conditions, disabilities and religious or moral beliefs can all be legal grounds for refusing vaccination, Rappaport said. “It’s really hard to question somebody’s sincerely held belief,” she said. “You’re supposed to assume their belief is sincere unless you have a good reason to think it isn’t.”

California’s Department of Fair Employment and Housing has said companies faced with an employee objecting to a vaccination on religious grounds can respond with “job restructuring, job reassignment, or modification of work practices.”

Instead of compelling vaccination, companies should focus on making it easy for workers to get the shots, said Maggie Robbins, an occupational and environmental health specialist at Oakland nonprofit Worksafe.

“It’s way better to get people to understand the need for vaccination and to get them to do it voluntarily,” Robbins said. “Why poke a hornets nest, particularly given the current moment where ‘you can’t tell me what to do’ is a very common strain?”

Employers should provide information about the importance of vaccines from trusted, third-party sources like health officials, academics and clergy, rather than from the company, to avoid questions about an employer’s motivation, she said.

State regulations also require businesses to inform workers about hazards such as COVID and plans to mitigate those hazards. Such safety measures may help alleviate workers’ concerns about unvaccinated colleagues, Rappaport said.

Crucially, employers should give employees paid time off to get vaccinated and recover from any side effects even if they’re a small enough company that they’re not legally required to do so, said Katherine Wutchiett, a staff attorney at San Francisco nonprofit Legal Aid at Work. Businesses of more than 25 employees must provide two weeks of COVIDrelated paid sick leave, including for vaccination and recovery, under a state law approved in March.

The California State University and University of California systems plan to require students, faculty and staff to be vaccinated before on-campus instruction begins this fall, and Stanford University will require vaccinations for students. But private companies outside of health care so far are generally not following suit, Rappaport said.

“They’re weighing the pros and cons, waiting to see how many employees end up vaccinated. If you already have 90% vaccination, maybe you don’t need to make the call to make it a mandatory thing because you’re pretty well protected,” Rappaport said, adding that a mix of in-person and remote work could allow employers to accommodate unvaccinated employees. “The vast majority of my clients wrestling through it end up landing on the ‘strongly encourage’ front as opposed to the mandate.”