A workplace showdown may be brewing over mandating vaccinations.
Employers would love the sense of certainty that comes with a vaccinated workforce. Workers can be brought back sooner, there’s no need for physical distancing in the office and there will be less worry about employees falling ill from COVID-19.
And polls suggest many workers would love this too. One recent survey found that more than 60% of workers want their companies to require everyone to get vaccinated before returning to the office.
But not everyone is convinced about the value of getting vaccinated. Surveys suggest that 17% of American adults are taking a “wait and see” approach, and 20% say either they “definitely” won’t get the vaccine or would do so only if required. Some states have even introduced legislation that would prevent companies from requiring workers to get vaccinated.
While I agree with other employment law experts that companies are well within their legal rights to mandate a vaccine – provided they offer disability and religious accommodations – I don’t expect them to lower the hammer, at least not right away.
Most of the time, employers influence worker choices without a direct mandate. Instead, they use more-subtle methods – such as imposing rules and expectations, tinkering with pay, monitoring behaviors, controlling time and judging performance.
Undoubtedly some organizations will impose a vaccine mandate as a necessity.
And while many corporate CEOs say they are mulling the idea of a mandate, most seem to have settled on more subtle methods at their disposal.
A simple way to alter worker choices is to make it easier for workers to engage in behavior the employer wants to encourage.
At the law firm where I used to work, they offered dinner for people who worked past 6:30 p.m. Were they just being nice? Of course not! They wanted us to stay at work.
Companies have already started doing the same for vaccines. Some employers are offering on-site vaccinations.
Others are making it easier for workers to make it to their vaccine appointments off-site. Target is offering its workers free Lyft rides to vaccination sites.
For workers worried about using scarce vacation or sick time, Trader Joe’s, Chobani and Dollar General are offering time off to get vaccinated.
Although the human resources department often handles routine communications about legal requirements and mandatory training sessions, companies can also draw upon the expertise of their marketing departments to craft internal messaging.
They seem to already be doing so with vaccine messaging. Some large companies, such as Walmart and Microsoft, are assisting with the vaccine rollout and publicizing that role in their internal and external messaging. Meatpacking plants, which have been plagued by extensive COVID-19 outbreaks, are promoting the vaccine through videos, posters and presentations.
And when the stakes are high enough, companies can be brutally effective at persuasion.
As the U.S. finds itself in a race to vaccinate enough of the population to keep fast-spreading COVID-19 variants at bay, the stakes are deadly serious for companies hoping to reopen in the months ahead.
Short of threatening to fire unvaccinated workers who do not qualify for a disability or religious exemption, companies certainly could make things inconvenient for workers who avoid the vaccine.
I expect that companies may start to resort to more-punitive measures over time, to help push remaining stragglers over the finish line.
It could be a “reward” that is primarily intended to foment a fear of missing out among the vaccine-reluctant; monthly raffle drawings available to the recently vaccinated; tickets to the company’s outdoor barbecue for those fully vaccinated by a specified date; or preference in vacation scheduling or shift selection for those who are vaccinated.
Employers can also introduce annoying hassles for vaccine avoiders. That could mean automated reminders, followed by personalized reminders from human resources, and eventually a phone call. At some point, it becomes more of a hassle to avoid the vaccine than to get it.
Companies that don’t want to fire workers who refuse to get a shot may ultimately have them sign a document acknowledging the health risks of continued exposure. While such a document should not include an unlawful waiver of workers’ compensation claims, it could explicitly warn workers of the health risks they’re taking.
Are companies meddling in workers’ choice and behavior? Of course they are. You might even say it’s their core competency.
Elizabeth C. Tippett is an associate professor at the University of Oregon School of Law. Distributed by The Associated Press.
