Making Mandatory: Vaccines in the Workplace

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According to the CDC’s COVID Data Tracker, after hitting a peak in early January 2021 of over 300,000 new American coronavirus infections in a single day, the number of new cases began falling precipitously over the ensuing months, with the seven-day moving average dropping to 56,000 by late March. Not coincidentally, COVID vaccination efforts in the same time frame have been ramping up—as of February 1, 2021, 32.2 million vaccines were administered in the U.S., with President Biden aiming to vaccinate 1.5 million more Americans each day. With over 200 million doses in under two months, the Biden administration’s original goal has been far exceeded, as 43% of Americans have already received at least one dose of the COVID vaccine as of the date of this writing. A consequence of the vaccination objective progressing at such an expeditious rate is that the overnight metamorphosis from in-person to remote work will likely begin to revert quickly as a number of large corporations, including Amazon, Apple, and Goldman Sachs, are expecting their workers to make a return to the office by midsummer.  

While Facebook CEO, Mark Zuckerberg, has envisioned that half of the 48,000 employees at his company could be moving to permanent remote work within the next decade, the reality for many is that a return to the office is inevitable—the question is simply when and under what conditions. A study of over 2,300 American workers across ten industries found that while 12% of those currently working from home would like to continue doing so full-time, even after the pandemic, the vast majority actually desire a return to the physical workplace. However, because the coronavirus’s main source of transmission is in-person interactions, employers looking to facilitate the safe return of their employees back into the workplace face a precarious predicament.

Although the onset of COVID-19 has certainly produced a new set of exigent issues, the obstacles associated with creating a safe workplace amidst a global pandemic are not novel. It is estimated that in the first year of the 2009 H1N1 pandemic—more commonly known as the swine flu pandemic—up to 575,400 individuals worldwide died from the novel influenza virus. Resembling the coronavirus, the influenza virus spreads primarily through respiratory droplets traveling from any symptomatic or asymptomatic infected individual to those nearby, presenting a similar set of public health challenges to those currently posed by COVID-19. In an effort to combat the transmission of swine flu in the workplace, hospitals across the nation, including the University of Pennsylvania Health System and Emory Healthcare (both among the largest hospitals in their respective state), began conditioning continued employment on their employees receiving a flu vaccination. Because doctors, nurses, and other hospital staff are in constant and direct contact with patients—many of whom are especially vulnerable to the injurious effects of disease—these hospitals felt that it was imperative for their employees to be properly immunized against lethal viruses as a matter of public and patient safety.

Vaccines aid our bodies in developing an immunity to disease, but society requires a high enough percentage of vaccinated individuals “before the disease will wane through a process known as herd immunity.” With COVID-19, scientists figure that at least 70% of the American population will need to receive a vaccine before herd immunity is achieved, and utilizing a workplace vaccine mandate can help speed this process up considerably. The CDC has estimated that without a workplace vaccine mandate in place, only 43% of workers typically get vaccinated, but the figure jumps to 85% once such a policy is implemented. In practice, compliance with compulsory workplace vaccines has been found to reach as high as nearly 100%. In fact, in 2017, after a large Midwest healthcare provider instituted a strict employee flu vaccination requirement, out of nearly 14,000 employees, only fifty were dismissed for non-compliance. While most employees would undoubtedly prefer the carrot—such as one-time bonus payments being given by employers for receiving the COVID vaccine—to the stick, the simple truth is that it may not be possible, as one infectious disease expert has claimed, to “get to a high immunization rate without some kind of mandatory flu vaccination program.”

It should be noted that although both the Equal Employment Opportunity Commission and Occupational Safety and Health Administration have deemed employer mandated flu vaccination policies permissible, these provisions have typically only been found within the healthcare industry. Nevertheless, with both the transmission and mortality rates of the coronavirus being much higher than that of the influenza virus, employee COVID vaccination requirements have begun to venture beyond the walls of hospitals and healthcare clinics. Indeed, COVID vaccines have recently been added to the list of prerequisites applicants must fulfill in order to work in a number of industries across the country. From the sommelier and maître d’ positions at New York’s iconic fine dining restaurant, Eleven Madison Park, to accounting and managerial roles with JBS USA Holdings Inc., one of the country’s largest food processing companies, employers have begun utilizing compulsory vaccines to create a safer workplace environment for both their employees and customers. These policies, however, have not been implemented without opposition. 

The partisan divide on vaccination is clear; a survey found that while 75% of Democrats support a mandate requiring a COVID vaccination at their workplace, 41% of Republicans are strongly opposed to such a requirement. In fact, bills—many of which are Republican sponsored—outlawing the ability of employers to condition employment on vaccination have been proposed in at least 23 states. Arguments centered primarily around personal autonomy as well as the safety and effectiveness of the vaccine itself have emerged from critics of potential workplace vaccination policies. The California Nurses Association and the National Nurses Organizing Committee have strongly encouraged nurses to receive flu vaccinations in the past but have maintained that the decision should ultimately be left up to the nurses themselves. Citing concerns about the shortened safety trial period, other opponents have had issues with the potential side effects and safety of vaccines—such as the H1N1 and COVID-19 vaccines—that have been accelerated through clinical trials in order to fight global pandemics. Nevertheless, numerous public health agencies and experts have attested to the safety of the vaccines currently being administered nationwide. 

Ultimately, a company contemplating a compulsory COVID vaccination policy must weigh the importance of potentially violating their employees’ individual freedoms with the need for both public and workplace safety. For a country that has traditionally championed personal liberties, policies like this may be a hard pill to swallow; however, as the adage goes, “With great sacrifice comes great reward.” In this context, the reward may be a swifter return to a society that resembles pre-pandemic life. 

About the Author: Austin Peng is a J.D. candidate in the class of 2022 at Cornell Law School. As a University of Miami graduate with a degree in Economics, Austin is interested in issues involving financial regulation and tax law. He is an Online Associate for Cornell Law School’s Journal of Law and Public Policy, The Issue Spotter, and serves as the Co-President of the California Law Students Association and the Secretary of the Business Law Society.

Suggested Citation: Austin Peng, Making Mandatory: Vaccines in the Workplace, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Apr. 30 2021), https://live-journal-of-law-and-public-policy.pantheonsite.io/making-mandatory-vaccines-in-the-workplace.