By Michael Hiltzik, Business Columnist
Aug. 9, 2021 - Los Angeles Times
At least on the surface, the tide has turned in favor of employers mandating that workers, and in some cases even customers visiting their premises, be vaccinated.
That’s the impression one gets from news reports naming Walmart, Walt Disney Co., Google, Frontier and United airlines, and Walgreens as companies requiring employees to be inoculated against COVID-19.
But there’s less here than meets the eye. Some of these companies are exempting their front-line retail workers, who are most at risk of infection ・and most likely to spread it to customers and family members.
Some are imposing what experts call a “soft mandate,” meaning that vaccination resisters simply have to undergo regular testing.
The vast majority of employers are still holding off, waiting for even clearer guidance from federal or state governments that may tip the scale. Some may be holding off pending formal approval of the vaccines by the Food and Drug Administration.
The FDA has granted emergency use authorization to three vaccines on the U.S. market; that’s a somewhat less rigorous standard than full approval, although experts expect the latter to be coming within weeks or months.
For those employers, the concept of requiring vaccinations is “still at the talk level,” says Dorit Rubinstein Reiss, an expert in vaccine policy at UC’s Hastings College of the Law.
That’s not good enough. Employers have more influence over our lives than almost anyone else. Lord knows that’s not always a good thing, but in this case it’s an opportunity.
Requiring vaccination, albeit subject to medical and religious exemptions, is “the best way to protect workers and customers where there is frequent close contact with many individuals who may be infected,” observes 35 healthcare, political and civic leaders in an open letter urging the private sector to take an aggressive stand in favor of vaccination.
Asked what he would say to a company chief executive leery of imposing a vaccination mandate, former Medicare and Medicaid administrator Andy Slavitt, a signer of the letter, told PBS News Hour:
“We know you would prefer to stay out of it, but, unfortunately, that’s not the case we’re living in. And if you want to be part of bringing COVID to its knees, then you have got to step up and lead and do things like this. ... What we have experienced is that, for all of the people who might be concerned about [mandates], there are many, many, many more people who say, thank you, I feel safer now.”
That said, the letter writers stopped short of advocating all-out vaccination mandates; in situations where a vaccination requirement is not an option, they recommended subjecting the unvaccinated to regular tests. They also called on employers to offer cash incentives, paid time off to get vaccinated and easy access to vaccinations.
“I believe in [mandates], but we need to take the excuse away from people” in Florida and Texas, where the partisan opposition to vaccination mandates is strong, Slavitt told me online. “We’ll hit a tipping point if we get enough and if those that need to be tested get tired of it.”
Public officials have become more outspoken in favor of vaccination mandates.
“As a nonpolitical person, as a physician, as a scientist, the compelling case for vaccines for everybody is right there in front of you. Just look at the data,” Francis Collins, director of the National Institutes of Health, said Sunday on ABC’s “This Week.” “I celebrate when I see businesses deciding that they’re going to mandate that for their employees. … I think we ought to use every public health tool that we can when people are dying.”
As of Aug. 2, public employees in California came under a mandate to be vaccinated or undergo regular testing; the same mandate was applied to healthcare workers and others in high-risk categories on Aug. 9. City workers in New York will have to be vaccinated or undergo regular testing.
There’s no doubt in the scientific and medical communities that widespread vaccination is the key to beating the pandemic.
Although case rates have been rising in every state because of the spread of the highly transmissible Delta variant, they’re rising more slowly in states and regions with higher vaccination rates. In those areas, moreover, hospitalization and death rates are generally lower than in places with low vaccination rates.
Unvaccinated communities, moreover, threaten to germinate and harbor new strains of the virus, posing possibly greater risks to everyone.
Statistics showing which demographic groups harbor the most vaccination hesitancy or refusal also point to the positive role employers could play.
According to the latest Household Pulse Survey of the Census Bureau, covering the period June 23 through July 5, vaccination resistance is strongest among people in their 20s and 30s and among Black Americans compared with other racial groups. It’s correlated with education and income ・resistance falls as one moves up either scale.
Although a sizable share of vaccination refusal is related to partisan leanings, with Republicans and conservatives less likely to accept vaccination than Democrats and progressives, the census figures identify another pool of holdouts ・young Americans, those with low incomes, and people of color.
Unfortunately, those are the workers most often left behind by corporate vaccination mandates as they are currently implemented. Walmart and Walgreens, for instance, are requiring vaccinations among their office workers, but not of their front-line retail employees, who are most likely to be young and low-paid.
Some other companies with highly vulnerable workforces are still shy about mandating shots. That includes Amazon, which is only going as far as requiring masks of its 900,000 warehouse workers regardless of their vaccination status. Similar rules apply to front-line workers of other employers who are exempted from those companies’ vaccination rules for office workers, such as Walmart and Target.
All-out vaccination mandates are seen mostly in limited employment sectors such as healthcare and among public-sector workers, whose government employers tend to have more authority to set workplace standards. But there are some exceptions.
United Airlines has become the first major carrier to require all employees to be vaccinated or face termination. “The facts are crystal clear: everyone is safer when everyone is vaccinated,” CEO Scott Kirby and President Brett Hart stated in an Aug. 6 memo to employees. Thus far, only the small budget airline Frontier has imposed a similar rule, but other major carriers may soon fall into line.
Vaccination mandates are also spreading among Silicon Valley companies. That may not be surprising, since their workforces tend to be relatively well-paid and well-educated; many also have jobs that can be done remotely.
Kirthi Kalyanam, director of the Retail Management Institute at Santa Clara University, attributes that in part to the “early adopter” pattern often seen in high technology ・those who are most welcoming to innovation will try new technologies first; since the most widely distributed COVID-19 vaccines, those developed by Moderna and Pfizer, use a new method, they fall into that category.
“People who are unvaccinated are those I would call late adopters,” Kalyanam told me. “A lot of those people are also front-line workers.”
As long as news reports citing “breakthrough” infections ・those afflicting the already-vaccinated ・remain common, those workers might continue to harbor doubts about the value of vaccinations. That’s too bad, since the statistics related to breakthrough cases imply that the vaccinations work in preventing severe cases and deaths.
To some extent, employers’ timidity about imposing vaccination mandates is understandable. Business owners are naturally risk-averse, and they may see mandates as invitations for lawsuits or wholesale resignations. The latter could be a problem for mass employers of low-wage labor such as Amazon and mass retailers, which are scrambling for workers in a tight labor market.
Those workers, moreover, may be more likely to quit if faced with the prospect of yet another employer mandate on top of working conditions and pay that are less than compelling. A well-paying, hard-to-get job at Google, on the other hand, may be harder to give up merely in protest to an inoculation rule.
As for the threat of lawsuits, it’s real, even though the legal balance has swung strongly, if not decisively, in favor of allowing vaccination mandates.
In a June 12 ruling, a federal judge in Houston found nothing untoward about a vaccination mandate imposed on employees of Houston Methodist Medical Center, where more than 100 nurses objected to being forced to vaccinate. The plaintiffs, ruled Judge Lynn N. Hughes, “can freely choose to accept or reject a COVID-19 vaccine.” If they refuse, however, they “will simply need to work somewhere else.”
The federal Equal Employment Opportunity Commission advises that federal laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” provided that the mandate doesn’t discriminate among workers on the basis of race, religion, gender, age or other protected categories.
The Department of Justice, furthermore, has concluded that public and private employers aren’t barred from imposing vaccination requirements, including those subject to emergency approval by the FDA. Federal law requires only that those subject to a mandate be informed that they can accept or refuse the shot and what the consequences might be for refusal. But it doesn’t bar employers from applying consequences that may include loss of employment.
Nevertheless, a lawsuit is a pain for a business even if victory appears assured. Anti-vaccination lawyers say they stand ready to defend employees hit with inoculation mandates. “An organization will likely be at odds with federal law if it requires its employees, students or other members to get a Covid-19 vaccine that is being distributed under emergency use authorization,” New York lawyer Aaron Siri, whose firm has aligned itself with anti-vaccination forces, wrote in February.
Some employers may be wary of union opposition to vaccination mandates. Organized labor hasn’t spoken uniformly about the issue, acknowledges Steve Smith, spokesman for the California Labor Federation.
“The labor movement is incredibly pro-vaccine, but they want workers to be at the table when these matters are discussed,” Smith told me. Unions tend to want employers to ensure that workers have access to vaccination if it’s required, and get paid time off to get the shots and to recover from any side effects.
It isn’t yet clear what will bring more employers over to the vaccination-mandate camp. “Clarity would be helpful,” says Reiss, observing that some state rules, including those in California, remain murky for private employers outside of healthcare. Formal FDA approval of the vaccines could help, although that approval is largely a foregone conclusion.
But there’s no legal reason why employers who require vaccinations among their office staff can’t extend the rule to front-line workers on their factory floors or in retail stores. The time has come to show their genuine commitment to the task of suppressing the pandemic.