🤿 Sunday Deep Dive: To mandate or not to mandate? The question all businesses are asking

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Legal Operations
Industry Insights

In November 2021, President Biden ordered a broad-scale workplace vaccine mandate. The mandate required employees of large businesses with 100+ employees to get jabbed or get tested weekly. POTUS hoped the rule would prevent 6.5k deaths and 250k hospitalizations.

It’s an understatement that not everyone was thrilled about the idea. Lawmakers from both sides of the aisle complained of government overreach. Others asked whether the mandate was lawful, ethical or practical, given challenges around implementation and possible staff shortages in healthcare and other sectors. Lawsuits were launched by businesses, states and religious groups challenging the mandate. Many of them were successful.

Finally, in mid-January, the US Supreme Court blocked the mandate in a split vote, describing it as a “blunt instrument” which did not have the support of Congress.

So where does that leave businesses?

With a nationwide mandate blocked, businesses will now have to decide for themselves how to balance workplace safety with the danger of losing employees who refuse to comply. Here are some of your vaccine mandate questions answered.

What are most businesses doing?

After his plan turned out to be a dud, Biden hoped to persuade  businesses to introduce their own mandates by dropping a little bit of peer pressure. According to him, 1 in 3 Fortune 100 companies already require their employees to get jabbed. A survey of 6000+ US employers found that:

  • 2 in 3 US companies are implementing mandates
  • 27% of US companies plan to require employees to be double vaxxed
  • Another 18% plan to mandate triple vaxxing
  • Another 18% will implement mandates but only for some staff

Tech companies have led the charge with Facebook, Google, Lyft, Netflix, Twitter and others all making their mandate policies public. United Airlines, Tyson Food, Goldman Sachs, and at least 23 law firms have also issued mandates while Boeing, General Electric and Amazon have resisted or recalled theirs.

Just more than half of Americans support these mandates.

Will mandates lead to staff shortages?

The pandemic has seen demand for legal services soar with law revenues rocketing by around 19% in 2021. Competition for talent is fierce, leading firms to up starting associate salaries by $15k. And a record number of Americans quit their job last year in what’s been called the Great Resignation. So it’s not a good time to scare off employees.

Do vaccine mandates incentivize jabs or do they send staff packing? The stats say, well, a bit of both.

  • 17% of Americans say they will not get vaccinated
  • ~15% of Biden voters who do not plan to get vaccinated say they would do so if their employer required it
  • That figure is under 10% for non-voters and under 5% for Trump voters

Some data comes from healthcare systems that have implemented mandates. In most cases, the proportion of employees who were terminated or quit in response to mandates is around 1%. For example:

  • Kaiser Permanente lost around 2.2k employees from a workforce of 240k
  • Mayo Clinic fired 700 employees from a staff of 73k

For others the attrition rate was much higher. NYC Health + Hospitals lost around 2.5k of 43k workers - roughly 5% of the workforce. And more than 50k care home workers in England could walk out over a vaccine mandate.

Depending on the size of your team and how easily you can replace people, losing 1% of your staff might be a total disaster or not much of a big deal.

Reports suggest that the legal industry is generally a fan of the jab. One expert said in September that most law firms had vax rates of more than 85% and 11 large firms reported rates of more than 90% in a survey back in August. That number is likely to be even higher now. The same may well be true for in-house talent. And as more firms introduce mandates, talent may find there is nowhere to go to avoid getting jabbed. It’s possible that mandate related staff shortages may be a non-issue for legal teams.

What do mandates achieve?

Having members of your team off sick or isolating can be a major headache, especially if the virus hits a bunch of people at the same time. Getting everybody vaxxed means they’re less likely to be infected and if they do test positive they’ll probably be back at work sooner. High vax rates might also be comforting for any feeling anxious about getting back in the office.

However, a mandate can sometimes backfire. One study found that some people rebelled against vaccination because they felt bullied into it by measures like vaccine passports. After all, most of us don’t like being told what to do. Companies could try using a carrot rather than a stick. Authorities and businesses around the world have offered a huge range of incentives including free desserts, marijuana joints and even a chance at winning a cow.

Are there options?

Companies can opt for a ‘soft’ mandate which means there are exemptions - for things like medical conditions or religious beliefs - and/or regular testing is offered as an alternative. It’s likely most people will get jabbed if the alternative (e.g. applying for an exemptions) is even slightly more inconvenient. Some companies are letting anti-vax employees work from home. Others, like law firm Katten Muchin Rosenman, have extended their mandate to clients and guests.

In the UK, several major retailers have cut sick pay for unvaccinated employees. Incentives like these are a softer way of encouraging employees to get jabbed, without threatening job loss.

What about local regulations?

The Big Apple is one place doing things it’s own way. Former New York City Mayor Bill de Blasio introduced a municipality-wide vaccine mandate for all private sector employees in December. The mandate is actually stricter than Biden’s because it doesn’t allow for testing as an alternative. The NYC rule is not going anywhere, despite POTUS’ failure at the Supreme Court. Rule breakers can be fined up to $1k per violation.

Other areas have gone in the opposite direction. In Montana and Tennessee, private employers are banned from mandating jabs. In 9 states, including Texas and Florida, employers are allowed to implement mandates but only if they provide exemptions.

So what does the future hold?

Some experts say it’s time to dump mass vaxxing and only jab the vulnerable. It’s not clear whether that notion will catch on. On the other hand, there’s always the danger (please no!) of another, more dangerous variant that sends officials hustling to get more needles in arms. One thing we’ve learned in the last two years is that we can’t predict the future. Companies should be ready to evolve with the time.

Illustration by Alex William

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