To Mandate or Not to Mandate: That is the Corporate Question

February 9, 2022

 

As COVID-19 cases spiked across the country, the Biden administration, through the Occupational Safety and Health Administration (“OSHA”), mandated that large companies, with 100 or more employees, require all employees to be fully vaccinated against COVID-19 or test once a week and wear a mask. In mid-January 2022, the Supreme Court, in a 6-3 majority, blocked the vaccinate-or-test mandate for large employers. The majority concluded that Congress had not authorized OSHA to act and that the mandate did not differentiate between industries or employees who were more likely to be exposed to COVID-19. States and individual employers now have the responsibility of making their own decisions regarding vaccines and testing for employees. 

Despite the halt on the mandate, companies like T-Mobile, Citigroup, United Airlines, and Tyson Foods have implemented their own vaccine requirements and several companies will be firing employees should they not comply. For instance, unvaccinated T-Mobile employees will be put on leave at the end of February followed by removal if they are still unvaccinated come April. When employers are already struggling to find enough workers, an estimated 20-31% of the US population (or 1 in 5 Americans) has already been infected with COVID, and approximately 63.8% of the US population has already been vaccinated, should large employers force employees to take a vaccine or test weekly?

In an economy with an insufficient available workforce, establishing impediments and disincentives to get back to work is only going to hurt businesses.

Anti-Mandate:

For several reasons, I would say no. First, as of November 2021, reports indicated that 5% of adults had quit their jobs over the vaccine mandate. In an economy with an insufficient available workforce, establishing impediments and disincentives to get back to work is only going to hurt businesses. Second, if states and employers have the right to choose to force vaccines and/or testing, who is going to pay for the tests and what kind of tests are going to be required? As the country faces an influx of Omicron cases, clinics are running out of tests and wait times for testing can be days. For a person that needs to work for a living and a company that needs staff to stay in business, this demand is unwieldy and, in many cases, untenable. Third, the country is already facing supply chain issues which will likely exacerbate if truckers and other employees are forced to vaccinate or wait on tests to complete their routes. Fourth, what exemptions might be made for employees who have already recovered from COVID and carry high antibody loads? Some scientists make the case that antibodies are just as effective, if not more effective, than a vaccine from protecting a person from getting and dying from COVID. Finally, almost no one is making the argument that vaccines stop the transmission of COVID, but that they protect people from getting very sick and dying from COVID. If that is the case, then people who choose not to get vaccinated are more at risk of dying than are their vaccinated counterparts, which should be an individual and personal health choice based on a myriad of factors and information. Overall, for the sake of the economy and individual autonomy, employers should continue to make business decisions and let their employees make their own health care choices.

Pro-Mandate:

There are also several reasons to say yes to corporate mandates. The Supreme Court blocked Biden’s vaccine mandate, but corporations can still do their part. Vaccination requirements are not new. Schools require proof of vaccination, for multiple childhood vaccines, to complete enrollment. Multiple states, such as Illinois, New Mexico, and Oklahoma, require hospital workers to be vaccinated against diseases such as mumps, measles, and rubeola.

As acknowledged in the anti-corporate mandate section; clinics are running out of tests and there are extensive wait times. Although, breakthrough infections have been shown to occur for the vaccinated with the Omicron variant, the COVID vaccine still lowers risk of getting the disease and not just preventing serious illness.  A corporate vaccination mandate would decrease the need for testing, due to fewer people contracting the disease.

Corporations are entities under the law and are able to make choices for themselves.

Although the argument, for individuals to make their own health choices, is sound. Corporations are entities under the law and are able to make choices for themselves. Ninety-percent of the Fortune 500 companies run drug tests on their employees. As part of their employment, employees are unable to choose for themselves about their drug usage. Testing isn’t a question of if an employee is capable of doing their job or sober at work but a question of the expectations of employees. Corporations are historically allowed to direct specifics of employment. Vaccination requirements should be viewed no differently.

Finally, requiring vaccinations is a business decision. Unemployment, in April 2020, jumped from five million to twenty-three million. Slowly the unemployment rate has decreased back to a pre-COVID level. The unvaccinated run a higher risk of hospitalization due to COVID. A business trying to keep a large enough workforce to operate wants to ensure its employees are not likely to require extended leave due to illness.

Reagan Hinton and Caroline Morning Pope

 Reagan Hinton: Reagan Hinton is an attorney who specializes in small business law, non-profit law, estate planning, adoptions, and bankruptcy. An LL.M graduate of Pepperdine University School of Law and a JD graduate from Regent University School of Law, Reagan now calls Eastern North Carolina home.

Caroline Morning Pope: Caroline attended North Carolina State University; where she received her Bachelor of Arts degree in History. She is currently in her 2L year at UNC School of Law. When not in class, she runs half-marathons, fly fishes, and takes ball room dance classes. See Caroline’s previous blog post here.