Littler Survey: Employers Increasingly Consider Vaccine Mandates as COVID-19 Delta Variant Spreads

Survey of more than 1,600 employers reveals key concerns and strategies surrounding mandating and encouraging vaccination

(August 23, 2021) – Littler, the world’s largest employment and labor law practice representing management, has released the results of its COVID-19 Vaccine Employer Survey Report: Delta Variant Update, completed by 1,630 in-house lawyers, C-suite executives and human resources professionals across the United States.

While most employers surveyed are still encouraging, rather than requiring, vaccinations, the data shows an increasing openness to such mandates amid rising infection and transmission rates. The survey also explores how employers – many of whom updated plans early in the summer in anticipation of a return to normal business operations – are shifting their policies for incentivizing vaccination, return-to-office timing and mask wearing, among other pressing issues.

COVID-19 Vaccination Plans

While the majority of employers surveyed (63 percent) are encouraging, but not requiring, vaccination, the calculus may be shifting given the rapid spread of the highly contagious delta variant and the universal accessibility of vaccines for U.S. adults. Nearly half of respondents (46 percent) say they are more strongly considering a vaccine mandate in light of the recent rise in COVID-19 cases. Only 22 percent say they have firmly decided not to institute a mandate.

This shift is further highlighted when compared with data from a survey Littler conducted in January. At that time, less than 1 percent of employers were mandating vaccination and just 9 percent were planning to in some form. Now, the percentage of respondents whose organizations are currently mandating vaccines or planning to in some form has more than doubled, from less than 10 percent to 21 percent. Five percent now require vaccines for workers, 8 percent are planning to require that workers be fully vaccinated by a specified date in the near future, and another 8 percent are currently or planning to mandate vaccines for specific subsets of individuals (e.g., those who attend meetings/events or interact with customers).

Defining Vaccine Mandates

Not surprisingly, given the myriad factors involved with establishing an effective vaccine policy, employers currently or planning to mandate vaccines have differing definitions of what such a policy entails. Thirty-three percent are taking a hard line, defining their policy as “workers will be terminated if they refuse to be vaccinated,” but a similar amount (35 percent) are taking a softer approach, saying workers must be fully vaccinated or regularly tested as a condition for returning to in-person/on-site work. A smaller percentage (14 percent) are splitting the difference, defining their policy as “workers must be fully vaccinated or regularly tested, otherwise they will be terminated.”

“There is no one-size-fits-all approach to setting workplace vaccination policies,” said Devjani Mishra, a leader of Littler’s COVID-19 Task Force and co-leader of the firm’s Vaccination Working Group. “Employers need to gather the type of information that would guide any employment-related decision, including determining the number of workers who already have been vaccinated, understanding workforce sentiment, addressing and removing obstacles to vaccination, evaluating industry trends, and accounting for public safety and health policies and infection rates in their particular geographies.”

Concerns with Vaccine Mandates

Though employers’ sentiment and approach to vaccine mandates have evolved in recent months, their primary concerns have not. The top two concerns about mandating vaccination are the same as they were in January, namely resistance from employees who are not in a protected category but refuse to be vaccinated (75 percent) and the impact of a mandate on company culture and employee morale (68 percent). Yet the stakes for keeping employees happy have risen in today’s tight labor market and 60 percent now fear the possible loss of staff and difficulty operating due to termination or resignation of employees who don’t wish to be vaccinated.

At the same time, other concerns have diminished, notably legal liability if employees experience adverse reactions (36 percent compared with 64 percent in January), the effectiveness of such a policy given exempt groups (32 percent compared with 57 percent in January), and uncertainty about a vaccine’s effectiveness in limiting the spread of COVID-19 (10 percent compared with 22 percent in January).

Workplace Safety

Regardless of where employers net out on vaccine mandates, maintaining a safe workplace remains top-of-mind. Forty percent of employers have delayed plans to return more employees to in-person and/or on-site work, and that figure rises to 50 percent for organizations with over 10,000 employees. Many are requiring that face masks be worn in the workplace (except in private offices), either for all individuals (54 percent) or just for those who are unvaccinated (42 percent).

“The reality is that most U.S. workforces are not fully vaccinated, which leads to questions about whether and how to implement separate safety protocols for two different groups. Doing so, however, will require employers to develop a reliable and practical way of distinguishing between those who are vaccinated and not – without stigmatizing those who are unable to obtain the vaccine for legally protected reasons,” said Barry Hartstein, co-leader of Littler’s COVID-19 Vaccination Working Group and co-chair of the firm’s EEO & Diversity Practice Group. “If there’s one lesson here, it’s that, especially given the recent resurgence in cases, risk assessments in a pandemic are anything but static, and must be continually updated.”

Additional Key Findings:

  • Encouraging Vaccination: Providing information to employees about getting a COVID-19 vaccine has remained the top focus for employers over Littler’s past three surveys, with 84 percent still citing it as a current or planned action to encourage vaccination. Offering paid time off (e.g., to get and/or recover from the vaccine) has risen steadily since surveys Littler conducted in January (33 percent) and May (48 percent), with 65 percent now saying they plan or already offer this to employees.
  • Worker Vaccination Status: In comparison to Littler’s 2021 Employer Survey conducted in March, more employers are now currently or planning to ask workers to voluntarily disclose whether they have received the COVID-19 vaccine. There was a considerable rise in employers asking about vaccination status for employees (68 percent, up from 41 percent in March), new hires (61 percent, up from 9 percent in March) and, to a lesser extent, independent contractors/contingent workers (38 percent, up from 14 percent in March).
  • Healthcare Industry Employers: A higher percentage of healthcare employers are requiring vaccines or planning to (36 percent, compared to 21 percent of all respondents) and, among those who are mandating, more are planning terminate those who refuse to be vaccinated (57 percent, compared to 33 percent of all respondents). In addition, more healthcare industry employers are asking employees about their vaccination status (83 percent, compared to 68 percent of all respondents).
  • Additional Industry Differences: Fewer employers in manufacturing (8 percent) and retail/hospitality (9 percent) are requiring vaccines or planning to (compared to 21 percent of all respondents). When asked about concerns with mandating vaccines, employers in these industries expressed greater concern about resistance from employees (81 percent for manufacturing and 80 percent for retail/hospitality, compared to 75 percent of all respondents), the impact on culture and morale (78 percent for manufacturing and 73 percent for retail/hospitality, compared to 68 percent of all respondents), and loss of staff (71 percent for manufacturing and 69 percent for retail/hospitality, compared to 60 percent of all respondents).

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