Workplace vaccine mandates have hit a roadblock in the US.
The US supreme court has ruled that a COVID-19 vaccine or test mandate for companies who more than 100 employees introduced by President Biden in November is outside of the executive branch’s jurisdiction.
“At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have,” wrote the justices.
Biden expressed disappointment about this decision to “block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law.”
He went on to call on employers to continue to do the right thing. He wrote in a statement: “The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy.
“I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities,” concluded Biden.
Will employers continue to implement vaccine mandates?
Of course, actually implementing workplace COVID-19 vaccine mandates is much easier said than done without federal governmental support.
Challenger, Gray and Christmas senior vice-president Andrew Challenger noted: “Now that large companies are not required to get their workers vaccinated or tested, employers will have to grapple with whether and how to impose their own rules, outbreaks that lead to absences, and pushback from workers who have COVID-19 concerns.”
Research by WTW (formerly Willis Towers Watson) found that only 25% of companies would implement vaccine mandates irrespective of federal requirements. Among those continuing with the mandatory approach is the Washington Post, Apple, and Meta.
WTW’s survey of more than 540 US companies found that 31% of employers were worried that COVID-19 vaccine mandates would prompt resignations – a particular concern amid the ongoing ‘Great Resignation’ and something emphasized by the lobby against mandates.
However, there is actually little evidence for this. 13% told WTW mandates had already led to resignations, but the same percentage reported that mandates were helping them with recruitment or retention of staff.
Challenger noted: “While many are concerned vaccine mandates create yet another hurdle to attracting and retaining workers, others see it as a selling point.
“Companies are experiencing pushback from workers on return-to-office plans, and an absence of vaccine or testing policies will likely exacerbate that pushback.”
Research by the World Economic Forum (WEF) found that 65% of US workers supported vaccine mandates; 64% also supported frequent testing and 70% wanted mask-wearing at work.
62% said they would get vaccinated if they were required to do so to keep their job; only 12% said they would quit or find another job in their circumstance.
The WEF also discovered that in the US 22% would quit their jobs or work remotely if their employer did not mandate mask-wearing, frequent testing, or COVID-19 vaccinations. A further 25% would feel uncomfortable but go to work anyway.
Therefore, WTW’s population health leader Jeff Levin-Scherz believes that while “many more employers would have pursued vaccine mandates if the rule was left in place”, this is not the end of workplace vaccine mandates.
This is primarily because “the Omicron variant has proven so contagious that it will take very high vaccination rates to quell outbreaks. Vaccines help employers decrease the risk of infection at the workplace” and therefore disruption to their workplace.
Alternatives to vaccine mandates
It is important to remember that mandating COVID-19 vaccinations is not the only way that employers can encourage workers to jabbed.
Levin-Scherz notes: “Employers continue to be in the forefront of efforts to make it way for employees to get vaccinated, including offering flexible schedules, paid time off for vaccination and recovery. Some have offered on-site vaccination”; one example is Amazon.
Others have offered monetary incentives, such as Aldi US, Walmart, American Airlines and Target.
Many employers are also turning towards masks and testing as an alternative to COVID-19 vaccines.
WTW senior director of health management Patricia Toro agrees. She notes: “We need to promote a layered approach to addressing the risk of COVID-19 – this includes vaccines, masks, distancing, ventilation and testing.”
WTW recommends that companies develop a robust testing strategy. “Determine who you will test, the frequency, the type of test and who will pay for testing” and then “develop quarantine guidelines for those directly exposed to COVID-19”, notes the report.
The future of vaccine mandates
While these alternative measures are useful, Levin-Scherz is clear that “financial incentives and health promotion are not as effective” as mandates at getting high COVID-19 vaccination rates.
“Widespread transmission of the coronavirus won’t decrease until there’s high levels of immunity in the population. One of the chief tools to achieve that would b employer vaccine mandates,” notes Toro. “Overall vaccine uptake will be lower without the federal mandate to employers”.
But since the supreme court has ruled that vaccine mandates are out of the remit of the executive branch, what can be done?
Toro adds that “the Biden administration can do more to communicate the value of vaccination and make vaccinations easy to obtain”.
It could also develop “communication and other operations protocols that may support various business needs as they contemplate a vaccine mandate”, according to Toro.
There is the possibility that Congress could step in and implement a vaccine mandate.
In an opinion piece, the Washington Post editorial board calls on Congress to “explicitly authorize federal vaccine mandates” as they work best to get more people vaccinated…The Supreme Court’s ruling should not impede a continued push by those who can to get vaccinated and save lives.”
However, given it is now a year into Congress session and it has yet to do anything around this – plus it is evenly split between Democrats and Republicans making it hard for Biden to influence – it looks like employers need to figure out the best approach by themselves.
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