Dip in COVID-19 Cases May Lead to Increased Vaccine Resistance

Colder weather may bring another spike in illnesses

Allen Smith, J.D. By Allen Smith, J.D. October 21, 2021

​Declines in COVID-19 case numbers and deaths over the past few weeks, as well as reports of improved COVID-19 treatments on the horizon, may lead more employees to resist vaccine mandates and small businesses to put off requiring vaccines.

However, winter may give rise to another spike in COVID-19 cases, quarantines, and absent or sick workers—much of which could be prevented by vaccination. What should small organizations consider when deciding whether to mandate vaccines?

The number of COVID-19 cases in the U.S has dropped from the peak caused by the delta variant in September, and deaths have dipped as well, though both figures remain well above the number of cases and deaths this past June and July, according to The Washington Post.

In addition, a pill that reportedly reduces the risk of hospitalization and death has been developed, though it is not yet available.

The declining case numbers and deaths, as well as improved treatments, may cause some employers to hold off on mandating vaccination, noted LaKeisha Caton, an attorney with Pryor Cashman in New York City. But these employers should also consider other factors when making this decision, including the health and safety of their employees and the impact the outbreak could have on their businesses, she said.

Jennifer Yee, an attorney with Snell & Wilmer in Phoenix, said employers with vaccine mandates should remind employees that COVID-19 hospitalizations and death rates appear to be cyclical. "While many aspects of this pandemic remain mysterious, the latest public health guidance supports that the approved vaccines remain highly effective," she said.

"With the colder months and holiday season ahead, more people will be indoors and we may see another spike in COVID-19 cases and deaths as a result," said Saima Sheikh, an attorney with BakerHostetler in New York City.

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Mandate Vaccines?

The Biden administration announced on Sept. 9 that employers with at least 100 employees soon will be required to mandate that their workers are vaccinated or tested weekly. The president also has signed orders stipulating that most federal employees and federal contractors, as well as most health care workers across the country, be vaccinated against COVID-19.

Nonetheless, a few states have laws or proposed legislation banning vaccine mandates. Arizona has filed a complaint against the Biden administration over the COVID-19 vaccine mandate for federal employees and federal contractors and the expected vaccine-or-testing mandate for private businesses. The attorneys general of 24 states have also promised to challenge Biden's vaccine-or-testing mandate.

When employers are covered by conflicting federal and state laws, the federal rules will generally pre-empt state law. So how can small employers that are not federal contractors decide whether to mandate vaccines for their workers?

Sheikh said employers not subject to government-issued vaccination mandates should consider the following:

  • The risk of COVID-19 spreading at the workplace and any unique safety considerations for their workplace, such as a health care facility with people who are sick or elderly.
  • Employee attitudes toward vaccination, gauged using employee surveys.
  • The potential impact of a vaccine mandate on talent acquisition and retention.
  • Whether competitors and peers are requiring vaccination.
  • Whether alternatives such as masking and testing are feasible.

Amanda Brown, an attorney with Reed Smith in Dallas and Houston, noted that vaccines help decrease the likelihood of absences and large medical expenses related to COVID-19.

She said a small employer should consider:

  • The percentage of the workforce that is currently vaccinated.
  • Whether the company has tried incentives or penalties or a vaccination-or-testing mandate.
  • The nature of its workforce, such as whether it is primarily office-based or there is a large amount of interaction with the public.

"While the promise of improved treatments and declining case counts and deaths are encouraging, employers and employees should not assume that we are out of the woods yet," Brown said. "At this time, vaccine mandates remain one of the most, if not the most, effective tools an employer can use to provide a safe workplace and to ensure the safety and well-being of its employees."

Retention Challenge

Nonetheless, Yee noted, "Employer mandates may not be universally popular with employees. … The controversy surrounding employer vaccine mandates is not going away any time soon."

Lisa Reimbold, an attorney with Clark Hill in Los Angeles, said, "As COVID-19 treatments improve, I would expect to see a decrease in the number of mandatory vaccination policies in employers with fewer than 100 employees."

Employers are struggling to retain employees, and it is increasingly difficult to hire new talent, Reimbold said. "In many cases, given the competitive market, newly hired employees are demanding significantly higher wages and desperate employers in need of workers are paying these increased wages," she noted. "As such, implementing mandatory vaccination policies risks a loss in employees, which in employers with fewer than 100 employees may be more than they are willing to risk."

Instead of vaccination mandates, employers might opt to offer vaccination incentives. The Equal Employment Opportunity Commission has indicated that vaccination incentives are acceptable, so long as they aren't of a value that is considered coercive.



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