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‘Soft’ Vaccine Mandates Seen as Boon to Worker Buy-In, Safety

Aug. 4, 2021, 9:30 AM

Government Covid-19 vaccine policies requiring workers to get the shot or wear a mask and undergo regular testing give employers a viable model to increase workplace inoculation rates without imposing hard, vaccination-or-termination mandates, employment attorneys and scholars said.

Such “soft” mandates can be persuasive without generating the same level of employee blowback and litigation as “hard” mandates, while masking and testing serve as both an incentive to get the jab and a set of workplace safety protocols, they said.

Yet there are still potential drawbacks for employers related to the costs of testing and uncertainty over whether workers must be paid for screening time, attorneys warned.

Workplace vaccine mandates remain relatively rare, in part due to concerns that they may be disruptive and onerous to administer. Less than one in five employers are making the shot mandatory for current employees, according to a survey by the management-side firm Blank Rome LLP released this week.

Nevertheless, momentum appears to be building for mandates as new vaccination rates have slowed and infections spike. Tyson Foods Inc. became the latest large employer to follow many universities and healthcare systems to mandate the shot, with the biggest U.S. meatpacker announcing its vaccine requirement Tuesday.

Other major companies rolled out more targeted initiatives last week. Walmart Inc. said workers at its headquarters must get the shot, while increasing its monetary incentive for frontline workers without requiring vaccination. Walt Disney Corp. announced a vaccination requirement for nonunion employees.

The reach of the new federal mandate, however, dwarfs those of even the largest private companies. President Joe Biden said last week that federal workers—including military and on-site contractors—must prove they’ve been vaccinated or wear masks and submit to regular testing. That soft vaccine mandate covers millions of workers.

“The greatest single initiative President Biden has done for Covid response was to require vaccination as a condition of employment for federal workers and contractors,” said Lawrence Gostin, a public health professor at Georgetown University. “Soft mandates are truly transformational.”

Possible Snowball

The federal government’s soft mandate will create a snowball effect that will spread to state and local governments, and then private businesses, Gostin predicted.

California and New York City announced similar requirements for public workers just prior to Biden’s order.

Evidence from school vaccination polices for children show the power that soft mandates can have, said Gostin, who directs the World Health Organization Collaborating Center on National and Global Health Law. Attaching duties to parents opting out—such as attending health education or filling out an affidavit—is more likely to nudge them to get their children inoculated, he said.

Research into influenza vaccines mandates for health care workers also shows the persuasive effect of soft mandates. One hospital saw 96% of their unionized nurses get vaccinated rather than wear a mask, according to a 2017 review of research.

VIDEO: We answer the question on the minds of CEOs, in-house lawyers, and rank and file employees - can employers make their employees take the vaccine?

Focus on Safety

Employers looking to increase the share of their workforce that’s inoculated don’t want to be perceived as punitive or coercive, said Kevin Troutman, an attorney and leader of management-side firm Fisher & Phillips LLP’s vaccine work group.

A soft mandate fits with a broader vaccine policy that takes workers’ concerns seriously, Troutman said.

“As you’re announcing policies, focus on what you’re doing to make the workplace safer,” he said. “‘We’re not trying to be punitive, but we want you to be safe, and we want customers and visitors to be safe.’”

Companies outside of the health care industry don’t have rules as invasive as vaccine mandates, said John Hooker, a business ethics professor at Carnegie Mellon University.

Soft mandates have an advantage over absolute requirements in that the masking and frequent testing option fits with standard business practices, Hooker said. There’s a long history of employers requiring workers to wear personal protective equipment, and to submit to health-related testing, such as drug screening, he said.

Mandates that are enforced with masking and testing may be less likely to attract lawsuits and more likely to overcome legal challenges, said Dorit Reiss, a law professor at the University of California Hastings College of the Law who specializes in vaccine policy.

Still, hard mandates have stood up in initial court rulings. Challenges to vaccine requirements at Houston Methodist Hospital and Los Angeles Unified School District have been dismissed at the district court level.

Employer Costs

For all its advantages, the soft mandate option isn’t without its shortcomings for employers.

“The issues are going to be the costs and the potential wage-and-hour exposure,” said David Barron, an employment attorney who counsels companies for Cozen O’Connor LLP.

Federal law has a high bar for whether workers must be compensated for pre- and post-shift activities like Covid-19 screening—requiring pay only if the tasks are “integral and indispensable” to workers’ main job duties. State laws vary, with some imposing the same strict standard as federal law, while others are more permissive about which activities merit pay.

The top courts in California and Pennsylvania, for example, have handed down rulings that support pay for testing time.

Employers will likely have to pay for Covid screening and be prepared for dealing with employees who test positive, which may mean rethinking leave policies, said Devjani Mishra, an attorney who leads management-side firm Littler Mendelson P.C.’s Covid-19 task force.

Establishing a soft mandate also requires an employer to take a position on the virus being a real and serious threat, Mishra said.

“It shouldn’t be controversial,” she said, “but somehow, in August 2021, that’s controversial.”

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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