Employers must weigh many issues in considering vaccine mandates

Eventually, the COVID-19 vaccine is expected to create a path for Rob Farinella’s staff to return to Blue Sky Agency’s office, a sleek, converted warehouse in West Atlanta.

But, as the founder and CEO of the advertising agency, Farinella has no plans to force it. While he intends to take the vaccine as soon as it’s available to him, he won’t try to require any of his 30 or so employees to do so. Their shift to working from home was “seamless,” he said, and he is confident they can continue to do good work remotely.

“Stage one, we will invite people who have been vaccinated to come back to work,” he said. “But it will be a slow and careful process, and we want to do it in a way that feels inclusive and no one feels penalized and everyone can move at their own pace.”

The Atlanta office space at the Blue Sky ad agency is nearly empty as employees work from home.  Rob Farinella, founder and CEO of Blue Sky ad agency usually goes to the office about once a week. (STEVE SCHAEFER FOR THE ATLANTA JOURNAL-CONSTITUTION)

Credit: Steve Schaefer

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Credit: Steve Schaefer

The Food and Drug Administration’s authorization for the emergency use of Pfizer’s COVID-19 vaccine, as well as the promise of other vaccines on the horizon, brings with it the hope for an expedited return to normal. How fast that actually happens depends on a number of factors, none more important than the public’s willingness to get vaccinated. Employers could play a big role in encouraging that. But can they mandate COVID-19 vaccinations for their employees and, even if they can, should they?

New guidance released by the Equal Employment Opportunity Commission states that employers can require vaccinations, but they must provide reasonable accommodations for those who can not be inoculated for “sincerely held” religious beliefs or medical reasons.

Still, there are more considerations for employers than simply whether mandates are allowed. They must navigate a complex set of legal and practical issues. Are they liable if an employee experiences an adverse reaction from the shot? Could requiring the vaccine lead to a backlash and lead to more resistance?

“This is such a polarizing issue where there are more questions than answers,” said labor and employment attorney Ken Winkler, with the Atlanta law firm Berman Fink Van Horn. “And for those employers thinking about taking action, this can be a scary moment that can require some soul searching about the right approach.”

Karen Bremer, chief executive of the Georgia Restaurant Association, said the industry is enthusiastic about the COVID-19 vaccine as restaurants look to stay afloat and recover from brutal, pandemic-related losses.

“A lot of restaurants very much want this vaccine,” said Bremer. “And they want their customers to feel comfortable in their restaurants. But each business will have to evaluate all of the consequences.”

State Sen. Ben Watson, right, watches one of the first inoculations of the Pfizer-BioNTech COVID-19 vaccine given to healthcare workers in Savannah on Tuesday. (AJC Photo/Stephen B. Morton)

Credit: Stephen B. Morton for The Atlanta Journal Constitution

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Credit: Stephen B. Morton for The Atlanta Journal Constitution

Large companies may lead the way

Winkler said large companies, such as Delta, could be the trendsetters.

Delta Air Lines has not said if it will require employees to get vaccinated. But, on NBC News’ 3rd Hour of Today show, CEO Ed Bastian said, “We’re going to strongly encourage all our people to make sure they get that protection, that inoculation from this deadly virus.”

Bastian said many of the company’s employees qualify as frontline workers and should be able to get vaccinated in early rounds of distribution. It’s unclear exactly when vaccines will be available for those who don’t work in health care or live in long-term care facilities. But the next group prioritized likely will include people over 65 with health conditions and essential workers, such as police officers, food and packaging distribution workers and teachers.

Bastian said the company is talking to authorities about how to get employees vaccinated, and said he expects it will become a requirement for international travel.

Pilots are typically restricted from taking medications or vaccinations or immunizations until at least a year after FDA approval, according to the Federal Aviation Administration.

But the FAA said Dec. 12 that pilots can get the Pfizer vaccine while maintaining their certification.

“This is such a polarizing issue where there are more questions than answer. And for those employers thinking about taking action, this can be a scary moment that can require some soul searching about the right approach."

- Ken Winkler, labor attorney

The vast majority of Americans won’t be eligible for the vaccine until spring or later.

Many Georgia companies say they’ve made no decisions about what they’ll do when one is available for their employees. A Home Depot spokesperson said, “It’s way too early” for making a decision about whether to require vaccination.

“Our first priority is the health of our associates, just as it has been throughout the pandemic,” said Margaret Smith, spokeswoman for Home Depot, the largest company based in Georgia. “We provide free flu shots for all associates every year, for example, but there just aren’t enough details yet on the rollout of the COVID vaccine.”

With flu shots, the EEOC has advised employers to encourage rather than require them, but the agency has not prohibited employers from making flu shots mandatory, particularly when the flu is severe.

A Coca-Cola spokesman said simply, “We don’t have any information to share at the moment.”

Georgia’s $41 billion poultry industry was hit especially hard by COVID-19 outbreaks. Still, Mike Giles, president of the Georgia Poultry Federation said in a text, “I’m not aware of any employers at this point who plan to make it mandatory.”

The industry is pushing for its workers to be prioritized as essential in order to get the vaccines on the earlier side.

The first doses of the Pfizer vaccine trickling into Georgia are earmarked for health care workers and nursing home residents.

Hospitals likely will not make the COVID-19 vaccine mandatory, at least for the time being, according to Anna Adams, vice president of government relations for the Georgia Hospital Association.

Hospitals want to help protect staff, but “we do not want them to feel like they don’t have a choice in their own personal health decisions,” she said.

While a flu vaccine is typically required for health care workers, they can get waivers for medical or religious reasons, but must still take precautions like wearing masks.

Adams said that, since the COVID-19 vaccine has been authorized only for emergency use and is in short supply, it doesn’t make sense to require it.

Hospital systems are discussing whether the vaccine could – and should – become required later, Adams said. She added the next few months will be critical in gathering more information about the vaccine.

As more people get the vaccine, and it’s shown to be safe and effective, those who are hesitant will be more willing, even eager to get the vaccine, she believes.

More people willing to get vaccinated

Instead of forcing the issue, some companies may look for ways to incentivize employees to get vaccinated, such as offering financial perks as part of their wellness plans. Another way to motivate employees, according to labor attorneys and human resources experts, is to remind them that vaccination could eliminate the need for daily temperature checks or lessen the level of personal protective equipment required.

Employers could also make employees who don’t get vaccinated use personal time off for any needed quarantining.

The COVID-19 Pfizer BioNTech vaccination is placed in a syringe to be administered to a Gwinnett, Rockdale and Newton County Health Department employee at the district office in Lawrenceville, Wednesday. The Gwinnett district received 2,000 Pfizer vaccines for distribution. (Alyssa Pointer / Alyssa.Pointer@ajc.com)

Credit: Alyssa Pointer / Alyssa.Pointer@ajc.com

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Credit: Alyssa Pointer / Alyssa.Pointer@ajc.com

For employers that plan to mandate vaccination, they must be prepared for the possibility of having to accommodate a huge number of exemptions and the possibility of losing top-performing employees who refuse to get inoculated.

A new Kaiser Family Foundation poll showed that 71% of adults surveyed say they would “definitely” or “probably” get a vaccine, up 8% from three months ago. But that still leaves about 27% of Americans who are reluctant.

People have deep-rooted beliefs about vaccinations in general, coupled with strong political views, Winkler said. That could be “a real challenge for employers,” he said.

Experts say about 70% of the population needs to be vaccinated or have natural antibodies to achieve herd immunity.

Once the vaccines are widely available, a larger question is whether states can mandate that residents get them. The short answer is yes, according to legal and public health expert Joanne Rosen, a senior lecturer in Health Policy and Management and at the Center for Law and the Public’s Health at Johns Hopkins University.

In a recent Public Health On Call podcast, Rosen said a U.S. Supreme Court case in 1905, Jacobson v. Massachusetts, affirms that states can compel vaccinations. That case arose in the midst of an outbreak of smallpox in Cambridge. State law allowed cities to require residents be vaccinated against smallpox, so Cambridge did. Those who refused faced a fine of $5.

Jacobson objected to the vaccination mandate. He raised a number of arguments, including that his constitutionally protected liberty interests were being infringed upon.

Rob Farinella, founder and CEO of Blue Sky ad agency, says he's eager to see his office space fill up with colleagues again. “I’m a social person,” he said. “I really miss being in the office. I know there are barriers to that now, so I’m like sign me up.” (STEVE SCHAEFER FOR THE ATLANTA JOURNAL-CONSTITUTION)

Credit: Steve Schaefer

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Credit: Steve Schaefer

The Supreme Court said that states have, under their police powers, the authority to enact reasonable regulations as necessary to protect public health, public safety and the common good.

Even though it’s 115 years old, Rosen said, this continues to be the benchmark case on the state’s power to mandate vaccination.

But there are other ways, said Rosen, such as education campaigns, transparency about the vaccine and side effects, making it easy to get a vaccine. Providing some opt-out mechanism could protect the overall integrity and legitimacy of the vaccine regime and public health, Rosen said.

In Georgia, state officials have not indicated they will consider making a COVID-19 vaccine mandatory, and it seems unlikely given their unwillingness to require masks.

Asked whether there have been talks about vaccine requirements, particularly for workers in high-risk jobs, Gov. Brian Kemp said those discussions could come down the road. But right now, he said, there are not even enough vaccines to meet demand.

Meanwhile, Farinella said he’s looking forward to the day he’s back to the office, collaborating face to face. He’s ready to roll up his sleeve for a vaccine.

“I’m a social person,” he said. “I really miss being in the office. I know there are barriers to that now, so I’m like sign me up.”

Staff writers Greg Bluestein and Michael E. Kanell contributed to this article