It’s all over the news this morning that President Biden will begin enforcing his sweeping health mandate January 4, requiring private-sector workers be vaccinated against Covid-19 or be tested weekly. The White House will also enforce this mandate on January 4 for federal workers and contractors, as well as health workers at hospitals and facilities that participate in Medicare and Medicaid. When the mandate takes effect, employers will not be required to provide or pay for tests.
In the meantime, we are seeing tensions continue to rise among vaccinated and unvaccinated employees as more workers are returning to their offices. In response to these rising tensions, employers are implementing their own approach toward vaccination status, with many employers announcing that their staff must be fully vaccinated in order to return to the workplace. Employers are moving away from a carrot-approach, (providing cash incentives, days off or gift cards for vaccinated workers), and are instead adopting a stick-approach, punishing workers on account of their unvaccinated status. These workers and their families may end up facing unexpected financial fallout from the decision to remain unvaccinated. For example, New York’s Metropolitan Transportation Authority adopted a policy in June to deny death benefits to the families of workers who die of Covid if the workers were unvaccinated at the time of death. Other employers are reducing short-term disability and long-term disability coverage to unvaccinated workers.
The so-called stick-approach comes with its own set of issues and risks and should be carefully vetted to avoid future legal battles. While the Equal Employment Opportunity Commission has taken the position that employers are not prohibited from requiring vaccination for all employees who physically enter the workplace, employers who require vaccinations must consider reasonable accommodations when employees refuse to get vaccinated for medical reasons, including pregnancy-related reasons, or based on sincerely held religious beliefs. Employers with union employees must also consider their collective bargaining agreement before mandating vaccines.
