Mandate or Not, Many Employers Move Toward Requiring Vaccines

As the Biden administration's vaccine mandate works its way through the courts, a new survey finds that one-quarter of large U.S. employers will require their workers to be vaccinated against COVID-19, even if the U.S. government doesn't mandate that they do so.

The Occupational Safety and Health Administration's (OSHA's) emergency temporary standard (ETS), published in the Federal Register on Nov. 5, would require employers with 100 or more employees to ensure workers are vaccinated or are tested weekly (by Jan. 4, 2022) for COVID-19 and wear a mask inside at work (by Dec. 6, 2021).

The day following the publication of the ETS, however, the 5th U.S. Circuit Court of Appeals in New Orleans blocked the policy. Since similar challenges were filed in other courts, the 6th U.S. Circuit Court of Appeals in Cincinnati was randomly selected on Nov. 16 to hear a consolidated action.

Consultancy Willis Towers Watson conducted a survey of large U.S. companies from Nov. 12-18 and asked if they currently require employees to be vaccinated against COVID-19 or plan to do so; 543 companies responded to the survey. Respondents indicated that they: 

• Currently require vaccinations (18 percent).
  

• Will require vaccinations only if OSHA's ETS takes effect (32 percent).
  

• Plan to mandate vaccinations regardless of the ETS status (7 percent).
  
  

No Surge in Vaccine-Related Resignations

Few employers (3 percent) with vaccination mandates have reported a spike in resignations, although nearly 1 in 3 (31 percent) of those planning mandates were very concerned that this could contribute to employees leaving their organizations. On the other hand, nearly half of employers (48 percent) believe vaccine mandates could help recruit and retain employees.

In addition to vaccine mandates, many large employers have taken or plan to take the following actions to protect employees who are returning to the workplace, saying that they will:

• Offer COVID-19 testing (84 percent), most on a weekly basis (80 percent).
  

• Require unvaccinated employees to pay for testing unless prohibited by state law (25 percent).
  

• Require or plan to require masks to be worn indoors (90 percent).

"Despite the current holding pattern pending the court rulings, we advise employers to proceed with plans to implement the mandate as well as other efforts to protect their workers," said Jeff Levin-Scherz, population health leader at Willis Towers Watson. "Employers can encourage vaccinations and boosters with scheduling flexibility and time off, promote regular testing, stipulate mask wearing onsite to ensure employee health and safety, and support this with regular communications."

Financial Incentives Wane

The Willis Towers Watson survey found diminished employer enthusiasm for offering financial incentives for employees to get vaccinated: Just 2 percent currently have in place either a health insurance surcharge for unvaccinated employees or a reduced premium for vaccinated employees. In addition, respondents said that they:

• Offer no financial incentives (75 percent).
  

• Have discontinued or plan to discontinue financial incentives (14 percent).
  

• Offer some financial incentive (11 percent).

"Employers continue to evaluate the best way to keep their workers, families and the community safe. With the risk of COVID-19 infection higher now than a month ago, some companies have delayed bringing employees back to the worksite," Levin-Scherz said.

Lori Oliphant and Taylor White, attorneys in the Dallas office of law firm Winstead, in a November report discussed liability considerations when offering vaccination incentives as an alternative to an employee vaccine requirement.

They noted, if "a program would result in a premium differential based on an individual's vaccination status, it would need to satisfy regulatory requirements related to wellness programs as prescribed under the portability rules of the Health Insurance Portability and Accountability Act and the Affordable Care Act. Failure to satisfy these requirements could cause the employer to be subject to excise taxes, reporting penalties, regulatory investigations, and participant lawsuits."

The attorneys concluded, "At the end of the day, there are risks and benefits on either side of this analysis," whether requiring vaccinations or encouraging them through incentives.