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Shot or Not? Workplaces in Limbo Split on Vaccine Mandates (1)

Nov. 30, 2021, 11:00 AMUpdated: Nov. 30, 2021, 4:27 PM

Employers are divided on whether to require the Covid-19 vaccine of their workers even as the disease continues to spread, new variants emerge, and federal vaccine requirements remain in legal suspension, according to a survey of U.S. employers released Tuesday.

Fear of resignations is making the quandary over employer mandates even murkier, according to the survey conducted by the global advisory firm Willis Towers Watson Plc. That divide is particularly apparent in the health-care, hospitality, and manufacturing industries, where many workers remain skeptical of vaccinations, employment attorneys say.

Willis Towers found that 31% of employers are concerned that mandates will lead to employees leaving the company, but only 3% reported such a surge in resignations. Meanwhile, nearly half, or 48% of those surveyed, believe mandates will help attract employees. The company surveyed 543 businesses that employed a total of 5.2 million workers, between Nov. 12 and Nov. 18.

“Even though employers have a right to mandate vaccinations, they’re in a difficult position,” Scott Gilbert, employment attorney at Polsinelli, said in an interview to discuss the survey results. “They’ll need to balance all the factors for what’s best in a rapidly changing environment.”

This is even more true as the new variant omicron is spreading around the world and health officials are warning that it could mean a spike in Covid-19 cases, Gilbert said.

“It’s a little distressing that a fifth of companies reported that less than half of their employees were vaccinated,” said Jeff Levin-Scherz, a managing director and the co-leader of North American Health Management Practice at Willis Towers Watson. “We still believe that having people vaccinated is a major source of protection. I’m disheartened that many of the employers’ vaccination rate is much lower than the national rate.”

Only a third of employers said that they would mandate vaccines only if the OSHA regulation took effect, Levin-Scherz said, adding that this could pose a challenge because as variants surge, fewer people will be able to seek the protection from inoculation in the meantime. Data showing only 3% reporting a surge in resignation clashes with the high number of employers who are concerned about the reported wave of people quitting their jobs, he said.

Resignations in Mind

The Biden administration has pushed for companies to mandate the Covid-19 vaccine to stop the spread, and expressly required federal contractors and federal employees to get vaccinated. The Occupational Safety and Health Administration also issued a regulation, which is paused because of a slew of challenges, that would compel businesses with 100 or more employees to get the vaccine or to require testing.

Employers had to fully comply with the OSHA rule by Jan. 4, but the U.S. Court of Appeals for the Fifth Circuit earlier this month froze the enforcement amid legal challenges. The Sixth Circuit will hear the consolidated challenges to the government mandate, which were filed around the country by religious groups, businesses, states, and unions.

“From a practical standpoint, employers are hesitant to mandate a vaccine because they are worried about resignations,” said James Hermon, a member of the Dykema labor and employment practice group. “That’s what was welcome about the emergency standards—at least they were on an even playing field. Now we’re back to the patchwork.”

Four different lawsuits against a separate vaccine mandate for health-care workers assert that it will exacerbate staffing shortages, causing irreparable harm to facilities that are struggling to keep up with patient demand.

“Losing any staff right now and perhaps exacerbating the dependency on contracted staffing really is not in the interest of what hospitals are striving to achieve,” said Mary Mayhew, president and chief executive officer of the Florida Hospital Association.

‘No Easy Answer’

Hermon said there is also a benefit to workplaces that require the shot to recruit workers who may fear returning to the office because of uncertainty about their coworkers.

“Some employees would prefer to have vaccine mandates in place. You have some refusing to get vaccinated and other employees who refuse to come back to work if they are required to return. There is no easy answer,” Hermon said.

Companies have faced challenges as vaccine mandates become more common, and a wave of accommodation requests—particularly for religious exemptions—have flooded human resources departments. The health-care industry, already facing workforce shortages and employee burnout, has seen challenges to mandates around the country, including in New York and Maine.

The report also found that 25% of employers will require unvaccinated employees to pay for testing, and 90% will require masks to be worn indoors. About 11% of employers said they offer a financial incentive for getting a shot.

“The two biggest issues facing employers is the impact of the labor shortage and what percentage of a workforce is vaccinated,” said Michael Schmidt, vice chair of the labor and employment department at Cozen O’Connor. He said some companies may be in favor of the mandate and don’t like the idea of implementing their own policy, or having to police vaccination status. “Employers right now are reading the tea leaves.”

(Updated with additional reporting throughout. )

To contact the reporters on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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