A range of major US organizations, from Microsoft $MSFT to the military, have made the choice in recent weeks to require workers to show proof of Covid-19 vaccination if they are going to be working in-person.
The decision to create a vaccine mandate is hugely controversial for some companies, and completely unremarkable for others. Either way, what’s clear is employees want a policy to cut through the uncertainty of this moment. If you’re considering creating a mandate for your company, what should you know from a legal, HR, and management perspective?
This is shifting ground for companies globally, and your first stop is to consult a legal advisor and government guidance for your country.
Global firms are closely watching the US, where around 63% of adults are fully vaccinated against Covid-19 and several large corporations have chosen to mandate vaccines. There is broad agreement that US companies have the legal standing to require vaccines in order to reenter the workplace, and have since a 1905 case involving an outbreak of smallpox. Companies do have to provide “reasonable accommodations” however, allowing individuals to opt-out for religious or medical reasons, for example.
Elsewhere the legality is murkier. In some countries such as Indonesia and Saudi Arabia, governments have applied near-universal mandates. But in the UK, where around 75% of adults are fully vaccinated, requiring a vaccine, or even collecting data about someone’s vaccine status, is a “legal and moral minefield,” as Joanna Partridge puts it for the Guardian. That’s because employees could potentially sue employers on grounds of discrimination or even unfair dismissal if they’re subjected to a mandate, according to employment lawyers. This is unlikely to change unless it is tested by UK law or legislated by the government, as is already the case for care homes, where employees have to be vaccinated by later this year.
One exception so far has been Pimlico Plumbers, a London-based family firm, which in June issued a “no jab, no job” policy for new staff after consulting with lawyers. “Despite all the kerfuffle surrounding our ‘no jab, no job’ policy, it doesn’t seem to have put anyone off from applying,” founder Charlie Mullins said in a statement. “Most think it’s sensible and appropriate.”
Countries where legality is not yet clear or established, or where vaccines aren’t yet readily available, are racing to find ways to get their staff to comply in other ways. (Here’s more on how mandates by governments and businesses are playing out across countries.)
Here’s a breakdown of policies for some of the world’s biggest corporations.
The primary purpose of a policy should be about protecting the business, its employees, and the environment it’s operating in against the spread of the novel coronavirus. That’s why any discussion should start with a risk assessment that factors in case counts, vaccination rates, workplace safety precautions, whether employees can work from home, and when exceptions will be made.
These determinations can help employers justify their policy, but also potentially provide them some protection by showing the company has made reasonable accommodations or provided other measures for employees who refuse to be vaccinated.
“There’s definitely legal risk if it’s not done properly,” says Lucy Lewis, a UK-based partner with global commercial law firm Lewis Silkin, particularly if an employee can prove that being unvaccinated proved detrimental to them.
In the US, as an example. the Society for Human Resources Management says that companies considering terminating an employee for refusing a vaccine mandate “are first obligated to assess the risk the unvaccinated person would present if they remained employed, and weigh whether someone could work from home rather than be let go,” writes Quartz at Work reporter Lila MacLellan.
A policy may also help a company handle disputes, Lewis wrote with her partners in an FAQ for employers. It could request that “employees not to ask each other about their vaccination status, with a failure to comply being treated as a disciplinary matter. Similarly, employees who are spreading untrue vaccination myths could also face a disciplinary process outlined in the policy.”
In its advice regarding vaccine mandates, the US Equal Employment Opportunity Commission writes that “employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a Covid-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”
However the UK’s Chartered Institute of Personnel and Development (CIPD) warns against efforts to “identify and encourage” specific demographic groups to be vaccinated. Employers should share information equally, and “consider any cases of hesitancy individually,” it advises in its comprehensive guide for workplaces.
Lewis advises that any policy also lay out steps for unvaccinated employees in a way “that’s focused on resolution,” for example, suggesting that they talk through their situation with HR as a first step. “The idea of a policy is to direct into constructive dialogue the people who can’t comply, as opposed to a knee-jerk reaction” she says. This adds an additional layer of legal protection for employers, because you’re providing employees with options if they can’t, or don’t want to comply.
CIPD has a list of the kinds of accommodations that can be for unvaccinated employees here. (Some argue that accommodations risk disencentiving vaccines. A “soft mandate,” involving a mix of the above measures, might be an appropriate middle ground.)
First, be transparent about the fact that you’re considering one, advises Ben Granger, an organizational psychologist at Qualtrics. Quartz at Work reporter Lila MacLellan interviewed Granger about the results of a survey that found almost an equal amount of US employees wanted a vaccine mandate as would quit if one was instituted (a recent LinkedIn poll of UK workers revealed a similar split). “Explain how the company will make the call and what information it is relying upon, he says, because ‘people are really good at adapting to change, but people are not good at dealing with uncertainty.’”
Lewis Silkin’s partners lay out a variety of approaches. “Some businesses may prefer to set out the stance they expect they will be taking now as a method of encouraging employees to accept vaccination when offered, others may prefer to adopt a policy of encouragement and paid time off to attend vaccination, and wait to analyze whether there is a take up problem in their workforce before considering mandating,” the authors write.
The worst possible approach would be to have your decision be driven by a desire to purely have people back in the office, which people will only resent.
Whatever approach you take, you will need to help employees understand what informed the policy. That means considering:
For firms operating in multiple countries, any policy, at a minimum, should “include the purpose of the adopted approach, to whom the policy applies, and any steps the employer will take to help or encourage workers to be vaccinated, always bearing in mind local laws, including discrimination laws, as well as data privacy considerations,” advises global law firms Eversheds Sutherland.
South African bioethicist Keymanthri Moodley argues that “ethically, vaccine mandates are justifiable on multiple levels, based on the common good, and a public health ethics framework.”
But the tight labor market, the persistent possibility of lawsuits, and the discomfort both unvaccinated and vaccinated workers have with vaccine mandates, have many companies exploring other routes. These include:
If you do plan on offering an incentive, Lewis suggests getting legal advice, as some unvaccinated employees could argue that not having access to the incentive could be seen as a “detriment.”
Whatever you decide, it is critical that managers are equipped to deal with conversations on the issue. They need to closely understand the company’s policy, the science underpinning it, and the legal issues they need to comply with.
“Employees trust medical professionals, faith leaders, and their employers far more than they trust politicians or ‘big pharma,’ ” A. Kevin Troutman, a member of Fisher Phillips’ Covid-19 task force, recently told the Society for Human Resource Management. “Hearing why their employer thinks [vaccination is] important for the business is critical” to overcoming hesitancy amongst employees.
Corporate Covid-19 mandates can go some way in helping to increase herd immunity. That’s part of the reason Quartz created a vaccine mandate for employees returning to the New York office in July. CEO Zach Seward also argues that it’s imperative for other businesses to consider doing so, in order to help get the world out of the pandemic.
But for businesses across the globe the decision is not always simple, from a legal, practical, and moral point of view. Lewis expects many will go with a “soft mandate” approach of asking people to be vaccinated when they return to work, and to discuss exemptions on a case-by-case business. “Encouragement and engagement, it’s part of being a good corporate citizen, it’s part of being a good social citizen,” she says. “We all need to play our part—[while] not dismissing people.”
