Unvaccinated Workers, Federal Mandates: What's an Employer to Do?

Kathy Gurchiek By Kathy Gurchiek November 30, 2021
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Employees refuse vax

​More than one-quarter of workers responding to a recent survey would consider lying about their unvaccinated status—or fabricate documents about their status—to keep their jobs, fly on a plane, and frequent gyms and restaurants, according to new research.

This creates a challenge for employers that must stay current with employee vaccination and testing policies under the Occupational Safety and Health Administration's COVID-19 Vaccination and Testing Emergency Temporary Standard for employers with 100 or more employees. 

An appeals court recently halted the federal government's rule requiring businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or wear masks and undergo weekly COVID-19 testing, SHRM Online reported Nov. 17.

And a federal judge on Nov. 29 blocked in 10 states a Biden administration vaccine requirement, Reuters reported, "finding the agency that issued the rule mandating healthcare workers get vaccinated against the coronavirus likely exceeded its authority." 

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While employers are trying to figure out how to comply with the mandates, some of their employees say they won't follow along. An online survey of 1,309 vaccinated and unvaccinated U.S. workers conducted by experience management company Qualtrics found that:

  • 75 percent of unvaccinated workers said they are considering leaving their jobs when mandates go into effect; 45 percent would strongly consider leaving.
  • 40 percent of all employees would consider leaving their place of employment if a vaccine mandate is not in place; 14 percent would strongly consider leaving.
  • 59 percent of all employees surveyed said they support their employer's vaccination mandate, no matter the size of the company.
  • 55 percent of workers would consider reporting a co-worker who is not vaccinated; 23 percent would strongly consider doing so.
  • 42 percent of employees want their company leaders to enforce the federal mandate; 39 percent do not want them to enforce it.
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Requiring employees to show a vaccination card is one way to gauge compliance, but counterfeit vaccination cards are widely available. However, there are some steps employers can take to verify an employee's inoculation status, according to attorney Jim Paul, a shareholder at Ogletree Deakins in St. Louis.

Paul recommended that employers become familiar with what a valid card looks like, contact the site where the vaccine supposedly was administered and prohibit employees from submitting anything other than a vaccination card as proof of being vaccinated.

"There is really no good excuse for an employee not having, and being able to show, their card—short of a fire or flood that destroyed the card or, I suppose, a dog who ate it," he said.  

Only 3 percent of respondents in Qualtrics' survey said a monetary fine would motivate them to get the shot. As the Great Resignation rages on, with thousands of people quitting their jobs and companies struggling to fill vacancies, how should an employer handle noncompliant employees?

"That is the million-dollar question," Paul acknowledged. "Deciding whether to take a hard line by requiring vaccination and granting few medical or religious exemptions can be a difficult decision for an employer."

Qualtrics found that 35 percent of unvaccinated employees fear getting fired if they don't comply with vaccine requirements. If that happens, nearly one-third (32 percent) would look for jobs at companies with 100 or more employees (which would have to follow the federal vaccine-or-testing mandate), 22 percent would look for jobs at smaller companies, 14 percent would start a business, and 13 percent would retire or take a break from work.

In New York City, thousands of municipal workers—including police officers and firefighters—took unpaid leave rather than get inoculated when Mayor Bill de Blasio issued a mandate in November that city employees had to show proof of having received at least one dose of a COVID-19 vaccine. Some last-minute compliance brought the percentage of those vaccinated to 91 percent.

But mandating vaccination is not required in most workplaces, Paul noted.

"Federal contractors and hospitals and certain health care facilities are the only employers that must require vaccination; almost every other type of employer can allow testing as an alternative, if they choose, for staffing shortage concerns or other reasons," he said.

Qualtrics' head of employee experience and advisory services, Benjamin Granger, advised employers to create and nurture a culture of empathy and transparency.

"Have open, honest conversations one-on-one with employees to understand their circumstances and determine a path forward, whether that means getting vaccinated, weekly negative COVID-19 tests or determining if there's a valid reason for exemption," he said.

"Employers should recognize that likely not all of their employees will feel the same about vaccines or the mandate," he added, "and it's key for leaders to understand how their unique workforce feels about them to inform how new policies are communicated and implemented."

The top five reasons given for not getting inoculated were:

  1. They distrust the government (cited by 39 percent of respondents).
  2. They are fearful of side effects (38 percent).
  3. They want to wait for more information (20 percent).
  4. They already had COVID-19 and don't think they need the vaccine now (16 percent).
  5. They know someone who had a bad reaction to the vaccine (15 percent).
"Ultimately, employees want to know they are being heard," Granger said. "For example, a number of our customers asked their employees about vaccines and workplace safety issues before finalizing policies [that] allowed them to target communications to specific groups of employees, show them they were being heard, empathize with them and ultimately meet those employees where they are."

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Asking Vaccination Status

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

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