As COVID-19 vaccines wind their way toward approval, employers are envisioning a tantalizing prospect: workplaces immune from a deadly disease that has ravaged their bottom lines and upended economies around the world.
But how aggressive can those who write the paychecks be in persuading their workers to roll up their sleeves?
"Now is the period where we will see an explosion of employers thinking hard of how [the vaccine] affects their workplace and whether to require it," said Robert Boisvert, an attorney who specializes in labor and employment law at Fredrikson & Byron.
The high-stakes questions unleash yet more uncertainty in what has been the most uncertain of times.
"It's uncharted territory because there are many moving parts that employers are dealing with," said Theresa Adams, senior adviser for the Society for Human Resource Management (SHRM). "It's just so hard to know what to do yet, because we don't have guidance yet from the feds or state. We don't have a vaccine yet to know exactly how it has to be given. There are just so many unknowns."
Many Americans remain skeptical of a vaccine. A Gallup poll conducted in late October found 42% of U.S. adults said they would not get a vaccine, with many concerned that development of the drugs has been rushed and that safety of the vaccines is unproven.
Industry groups such as Hospitality Minnesota, whose members include hundreds of hard-hit bar and restaurant owners across the state, say though they are happy a vaccine is coming, they've yet to make recommendations about how employers should handle vaccinations.
"The big difference from recommending that their employees be vaccinated and mandating it is, what are employers willing to do if the employees violate that mandate?" said Jack Sullivan, a partner in the labor and employment group at Dorsey & Whitney.
Cafe Latte co-owner Bryce Quinn said he's inclined to require the COVID-19 vaccine for his 120 bakery and restaurant staffers in St. Paul. If he could have a health care worker give the shots onsite, "I would do that today."
If an employee objected, "I think there definitely will be a consequence," Quinn said.
Still, Quinn is unsure about logistics and plans to consult with his insurance company and attorney.
Bar owners, company executives and human resource managers are running through vaccine scenarios and anticipating how employment, and workplace safety rules might change after Joe Biden becomes president.
"Right now, it's an open question about what the [federal] guidance will be about a vaccine," said Sullivan. "Every employer has a decision to make."
His advice? "Think through not only what rules you want to set, but the potential impact of those rules."
Generally, the law allows hospital, first responder and other health care workplaces to order employees to get vaccinated against the flu since there's a risk of staff and patients infecting one another. Many hospitals are likely to adopt similar mandatory practices when it comes to COVID-19 inoculations.
"The CDC's [Centers for Disease Control] direction is that front-line health care workers, first responders, and people in long-term care facilities are going to be the first ones vaccinated and we will absolutely do that," said Scott Weber, chief marketing officer at M Health Fairview, one of the state's largest operators of hospitals and clinics, including the University of Minnesota Medical Center in Minneapolis and Fairview Southdale Hospital in Edina.
He added: "We believe everyone who can be vaccinated should be vaccinated."
Adams with SHRM said the U.S. Equal Employment and Opportunity Commission recommends most non-health care employers steer clear of mandates and instead offer incentives for employee vaccinations. Some 60% of employers offer free onsite vaccinations for the seasonal flu. Providing easy access to a vaccine at no cost "is a good incentive" and seems to work, she said.
Valerie Keels heads the Washington, D.C., office for the Geneva-based Global Alliance for Vaccines and Immunizations (GAVI). The nonprofit will work with health care providers to make vaccines free and available to its 375 staffers. But it won't require them.
"We may be legally able to compel employees to take a vaccine before re-entering the workforce, but we don't feel it's right from an ethical standpoint. Our staff should be able to make the decision themselves," Keels said. GAVI employees who don't want a vaccine can continue working from home even while others return to the office, Keels said.
HR and employment attorneys note that objecting employees with deep religious convictions or disabilities have legal ground upon which to decline vaccination. In those cases, employers are advised to accommodate the worker. Some may be asked to wear a mask, segregate from others on the job or to work from home.
"Right now courts say employers must reasonably accommodate an [objecting disabled or religious worker] unless it's an undue hardship," said Boisvert, the Fredrikson & Byron attorney.
He advises employers to consider what they will do if many staffers refuse the COVID-19 shots. Are they prepared to let them leave? Unionized shops will want to negotiate new rules surrounding vaccines. "If we think how controversial masking has been for some workers, vaccinations are an even higher level of invasiveness," he said.
Employers are likely to get some guidance from state and federal governments on how to proceed, said Sullivan at Dorsey & Whitney. Given Gov. Tim Walz's recent emergency orders mandating masks and shutting restaurants and gyms, "I'd be surprised if there was not a requirement to create a safety plan for how to return employees back to work," when there's a vaccine, Sullivan said. "Whether those are mandatory recommendations from the government, we will have to see."
The Minnesota Chamber of Commerce, which represents 6,300 companies in the state, on Tuesday called for state government to work with businesses on priority access to the vaccine. In a statement, Chamber President Doug Loon said, "Employers will play an active role to facilitate access to vaccinations and educate employees about vaccine safety and efficacy."
