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VOL. 45 | NO. 11 | Friday, March 12, 2021

No vaccine, no job? Not yet

Employers can only encourage shots for now. That could change

By Kathy Carlson

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A steady stream of people line up quietly on a weekday morning to get vaccinated against COVID-19. “We’ve been waiting for this for months,” one man says as he reaches the head of the line.

Those in line have decided on their own to be vaccinated. Others might not have a choice if they want to keep their jobs.

The approach businesses take will influence the course of the COVID-19 pandemic. The disease attacks cells that line the lungs and some blood vessels, can cause symptoms that linger for months. It has killed more than 525,000 people across the nation and about 2.6 million worldwide.

Studies have shown the first two vaccines – from Pfizer and Moderna – to be about 95% effective at preventing COVID-19 after both doses have been received.

Human resources managers and employment lawyers say they are counseling employers to encourage voluntary vaccination rather than requiring it.

The Knoxville-based Ruby Tuesday restaurant chain, for example, is offering hourly employees four hours of paid leave if they get vaccinated.

“I think employers will have better compliance (with vaccination) if they give their employees the autonomy to choose whether to get vaccinated,” says Nashville employment attorney Martha Boyd, a shareholder in the Baker Donelson law firm. “Some employees may take some time to come around, but employees will feel better about (getting vaccinated) because it’s their decision.

“Employers who mandate the vaccine may find employees who are opposed to the vaccine becoming more entrenched and remaining that way simply because they perceive that their right to make such a personal health decision has been taken away by an overreaching employer.”

Based on what he is hearing from fellow union members and leaders, Tennessee employers aren’t requiring COVID-19 vaccinations at this time, says Billy Dycus, president of the Tennessee AFL-CIO Labor Council. “I think most employers would make it voluntary, depending on what industry you’re in.”

As of March 6, more than 1.6 million doses of COVID-19 vaccines had been administered in Tennessee, the state health department reports. About 573,000 people were fully immunized. Fewer people – about 454,200 – had received just the initial shot in a two-dose regimen.

Overall, in Tennessee, about 61% of those receiving one or more shot were women. Nearly 63% were older than 60. Persons must be age 16 or older to be vaccinated.

Nationwide, more people might be inclined to receive a COVID vaccine than they were in the past. The New York Times, citing a survey from the Pew Research Center, reported last week that 69% of the public either plans to be vaccinated or already has been. That compares with 60% who in November said they were going to get vaccinated.

Employers and COVID-19 vaccines

What employers plan to communicate to employees about COVID-19 vaccines when vaccinations become widely available:

• Vaccines will be optional: 56.4%
• We will provide vaccines to our employees: 16.7%
• No communication anticipated: 10.3%
• Vaccines will be required: 7.7%
• Vaccines will be encouraged: 3.8%
• Not sure: 3.8%
• Other: 1.3%

Source: Boyd Center for Business and Economic Research at the University of Tennessee, Knoxville, and Alex Long, Williford Gragg Distinguished Professor at the University of Tennessee College of Law. Information released Feb. 8.

Employers seem to be eyeing mandates cautiously.

Only 8% of employers responding to a recent University of Tennessee study said they’d make COVID-19 vaccinations mandatory. Many more employers, about 60% of respondents, said the shots would either be encouraged or optional.

Interestingly, about one in six of the UT study respondents said they’d provide vaccines for their employees. There is no legal requirement for this, lawyers say.

Currently, with all three available COVID vaccines being supplied under emergency use authorization (EUA) from the U.S. Food and Drug Administration, employers might not have the option of requiring people to get vaccinated, employment attorneys say.

There is some concern that vaccines approved under the FDA’s Emergency Use Authorization cannot be mandated under federal law, Boyd adds. “The law is not clear in this regard, so we are advising employers to take the safest route and not to mandate the vaccine for their employees until it receives regular FDA approval – if then.’’

Once a vaccine receives full FDA approval, employers might require them based on their clear business needs and with some major caveats. Both Pfizer-BioNTech and Moderna have said they will seek full FDA approval of their vaccines in the first half of this year.

A group of patients, properly socially distanced, wait to receive the Pfizer COVID-19 vaccine at Vanderbilt’s 100 Oaks clinic.

-- Photo By Michelle Morrow |The Ledger

The third vaccine maker, Johnson & Johnson, received an EUA late last month for its single-shot vaccine. The company says it plans to seek full approval later this year.

There is precedent for employers requiring immunization. In the past, some have required employees to obtain flu shots, and that’s allowed by the federal Occupational Safety and Health Administration, which oversees workplace safety.

“We would anticipate that most places that require the flu vaccine, for example, might consider the COVID-19 vaccination, but even health care providers we work with are not making the vaccine mandatory,” attorney Fred Bissinger says.

Bissinger, managing member with the law firm Wimberly Lawson, is legislative director with the Society for Human Resource Management’s Tennessee council.

Whether an employer might require a COVID-19 vaccine would depend on the workplace, Bissinger adds. Simply wanting to keep employees from getting sick wouldn’t be enough to justify mandating a vaccine, he adds.

“Health care providers are more often than other employers to require certain vaccines, such as the flu vaccine,” he explains. “Even then, they are required to work with employees who are unable to take the vaccine for health reasons or object to the vaccine due to religious objections.”

The Americans with Disabilities Act could apply to employees with a disability requesting exemption from a vaccine mandate, says Alex Long, the Williford Gragg Distinguished Professor at the University of Tennessee College of Law.

“There is actually a disagreement in the courts as to whether a sensitivity to a vaccine qualifies as a disability under the Act,” he adds.

If an employee declines vaccination for religious or health reasons, it would then be up to the employer to determine whether an unvaccinated employee poses a direct threat to others in the workplace, Bissinger says.

Michele Sheriff chats with others after receiving the first round of COVID-19 vaccine at Vanderbilt’s 100 Oaks clinic. Recipients are asked to wait 15 minutes in case of side effects.

-- Photo By Michelle Morrow |The Ledger

The employer could only terminate the employee if he couldn’t make what’s called a reasonable accommodation to the employee that would remove the direct threat and allow the employee to work.

“That is intentionally a very high burden,” Bissinger notes, “and with many learning how to work remotely and the science unclear as to exactly what danger an unvaccinated employee would be to either a vaccinated co-worker or even another unvaccinated co-worker, we are not at the point of recommending that employers take that approach and simply mandate the vaccine.

“Rather, those who work with vulnerable populations such as in hospitals, medical offices, and nursing homes would likely be the places to start when seriously considering a mandatory vaccination policy.”

Boyd cites many reasons for leaving it up to employees to get vaccinated. A mandate would, for example, require additional paperwork for employers, who would then need to keep detailed records of requests for exemptions and how the requests were handled.

Ashlie Kerr, RN, MSN, prepares to give Michele Sheriff her first dose of the Pfizer vaccine.

-- Photo By Michelle Morrow |The Ledger

Before requiring vaccines, she says, employers should consider what they would do if their “very best employee refuses. Are you going to fire that person and fire others who refuse?” If the employer wouldn’t, Boyd adds, that employer shouldn’t have a mandate.

“An employer is likely to get better vaccination compliance by encouraging rather than mandating,” she says.

Boyd suggests educating employees about the benefits of vaccines and having company leadership set an example by getting vaccinated themselves.

Goodlettsville-based Dollar General, for example, says vaccination is voluntary for frontline workers at its retail stores.

“I feel like I’m close to getting my freedom back,” Sheriff says.

-- Photo By Michelle Morrow |The Ledger

“We do not want our employees to have to choose between receiving a vaccine or coming to work,” the company states. Frontline hourly workers were to receive a one-time payment of four hours of regular pay after receiving a completed vaccination. Other employees were being offered similar accommodations.

Giving employees incentives can help encourage vaccination, Boyd adds, but employers have to take care that the incentives can’t be seen as creating a wellness plan, which carries specific legal requirements.

“I believe the closer you can tie (the incentive) to getting the vaccine, and the smaller the incentive,” the less likely it is that the incentive can be viewed as a wellness program, Boyd says.

Vaccination is voluntary for the thousands of teachers in Metro Nashville schools, as it is for teachers across the state.

Metro Schools has partnered with Vanderbilt University and Meharry Medical College to make the vaccinations happen, Metro Nashville Education Association President Amanda Kail said in an email.

“Most teachers are really eager to get vaccinated,” she wrote. “We surveyed over 1,600 MNPS employees a few weeks ago and about 75% indicated they would get the vaccine, and about 20% said they had some concerns or weren’t sure yet. Only about 5% said they would not get the vaccine.”

If the change in public sentiment on vaccines noted in the Pew Research Center survey is any indication, people may continue to overcome vaccine hesitancy.

“My feeling is, as these folks observe their co-workers being able to get out a little more,” Boyd says, “they’ll feel a little safer about getting vaccinated.”

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