It has been a little over two weeks since the Food and Drug Administration’s (FDA) approval of the Pfizer-BioNTech vaccine (now marketed as Comirnaty) for the prevention of COVID-19 in individuals 16 years of age and older. With the news comes a decision for employers: to mandate or not? Just last week, results from a Willis Towers Watson survey of 1,000 U.S. employers stated over half (52%) expect they could have vaccine mandate requirements in place by the end of this year. A positive step forward in encouraging higher vaccination rates, these policies also spur a series of questions for businesses and human resource leaders, including:

1. Should employers mandate COVID-19 vaccination as a condition of employment or business relationship? If yes, considerations must be made in defining, implementing, and approving exemptions for employees, customers, or business partners, particularly for those with justified medical concerns or strongly held religious beliefs. For those terminated as a result of vaccine status, SHRM weighs in on their ability to collect unemployment.
   
   
2. What is the best process for identifying and establishing requirements for unvaccinated employees? Some options may include weekly testing, masking, and social distancing to ensure adequate protection of other individuals in the workplace.
   
   
3. What is the appropriate approach for balancing the rights and interests of vaccinated and unvaccinated workers when setting policies and designing plan coverage? Delta Airlines has announced that it will be charging higher premium contributions for unvaccinated employees. Other private insurers are no longer waiving the employee cost share for COVID-19 hospital admissions, as was standard at the beginning of the pandemic.

As employers consider their response, the several recent and thoughtful articles that follow might be helpful in exploring these issues.

Legality of Vaccine Mandates

Private employers have an absolute right to mandate the COVID-19 vaccine according to workplace attorney, Helen Rella, as quoted in this CBS article . Other recent media attention is making this legality clear to the public, and perhaps, nudging vaccine uptake. The EEOC COVID-19 technical assistance also seeks to clarify federal laws and support employers in navigating pandemic protocols.

Some Missouri legislators have called for legislation to stop Missouri employers from mandating vaccination. The BHC has expressed its opposition to any legislative intrusion on the rights of employers to provide for the health and safety of their workers and ensure operational and fiscal sustainability.

Public Opinion Poll Results – Call for Employer Action

Most Americans favor a mandate for those attending crowded public events; half think people should be fully vaccinated in order to go to a bar or restaurant; and vaccinated adults report being more likely than unvaccinated adults to wear masks in public settings and avoid large group settings. These findings, from an August 2021 poll conducted by the Associated Press and NORC at the University of Chicago, suggest that businesses and workplaces may gain favor by taking action, including making customers and workers fully aware when another worker or customer is unvaccinated.

According to an August 2021 poll by Axios, vaccine-resistant Americans are rethinking their position. The proportion of Americans highly resistant to getting the coronavirus vaccine has decreased to 14%. The poll also found that more than three-quarters of Americans either have been vaccinated or say they are likely to be, up two percentage points from mid-July, according to the index.

Costs and Hospitalizations Among Unvaccinated

COVID-19 hospitalizations among unvaccinated adults cost the U.S. health system billions of dollars in June and July 2021 alone, despite vaccines being freely and widely available in every state. The statistic is even more startling considering that the analysis used a seemingly conservative Medicare price estimate (commercially insured payments exceed Medicare rates). Like all health care, this is a societal cost that weighs heavily on American workers. 

Dr. Clay Dunagan, Senior Vice President and Chief Clinical Officer of BJC HealthCare, recently presented to BHC members , blending current science with the impact of the Delta variant on unvaccinated Missourians and the waning resilience of our region's health care systems and their employees. This firsthand account of the challenges health care workers face offers its own call to action. The positive news is that hospitalization rates may peak sooner rather than later, but ultimately, our ability to mitigate spread and achieve immunity will determine the course of the pandemic.

Closing Thoughts

As with many things in health care, COVID-19 has again poised employers to have a significant impact on employee behavior. While none of these decisions are quick or easy, taking action offers an important opportunity to build trust as an organization that values safety and evidence-based public health measures. Curious how your BHC peers are addressing vaccine requirements? Join us for our next COVID-19 Coffee Chat on September 27 to hear from fellow members and to learn more about treatment options for high-risk COVID patients.

Warm regards,

Louise Y. Probst

BHC Executive Director