Yes, your office should have a vaccine mandate

Welcome to Worksheet, a newsletter about how people are working smarter in these turbulent times.

In this week’s edition, S. Mitra Kalita takes a look at how an increase in COVID cases related to the highly contagious Delta variant is already prompting the private sector to revisit their newly formed back-to-the-office protocols. When it comes to vaccines, companies have a chance to take a stance.

The Centers for Disease Control and Prevention changed its mask guidance.

Again.

This comes against a surge in COVID-19 cases driven largely by the Delta variant and scientific findings that vaccinated individuals can transmit the more aggressive mutation of the virus. The news also arrives as some offices have reopened and other workers prepare to join them in a matter of days or weeks.

What now?

I’ve written multiple times on the obligation the private sector has when it comes to vaccines. In early March, I said, “Yes, there is something employers should be doing when it comes to vaccines.” Last month: “Employers have a tricky legal landscape on vaccines.” This week, I want to be unequivocal: Employers should mandate vaccines to get us out of this crisis.

You have legal support

The good news is that the law is on your side. I interviewed three legal scholars for their take:

Nicholas Bagley of the University of Michigan Law School teaches and writes on administrative law, regulatory theory, and health law. He was definitive: “…employers are free to require employees to take the vaccine as a condition of employment. The arguments to the contrary are poor and have so far been rejected by the two courts that have considered them.”

Those cases: A federal judge upheld Indiana University’s right to mandate vaccines for students, and similarly, a lawsuit challenging the Houston Methodist hospital system’s vaccine mandate was dismissed.

The Delta variant gives renewed urgency to the matter. Mandating vaccines now feels more than just a matter of an employer’s right but its duty.

“A few weeks ago I would have said that it may well be that policies short of mandates—various incentive programs, requiring those who opt out to explain why in writing, require a meeting with a professional medical provider before opting out—might work better. However, the spread of the Delta variant increases the risk that illness will spread enough that we could face another lock down, depriving children of schooling and devastating the economy,” Jill Horwitz, the David Sanders Professor of Law and Medicine at UCLA, wrote me in an email. “So I’ve come to be more in favor of mandates with very narrow policies excusing those with medical contra-indications.”

In both the EEOC’s blessing and the legal precedent guiding vaccine mandates, it is indeed key that “countervailing health concerns” are considered, said Allison K. Hoffman of Penn Law School. “So far, the mandates seem to stand on solid legal ground,” she said. “The wisdom of mandates is tricker. They will help some workers feel safer and will probably encourage some on the fence to get vaccinated but will alienate others. Also, in a tight labor market, and depending on geography and industry, a mandate might scare off necessary workers. Employers have to consider all of these factors.”

Delta’s effect on the workplace

This moment feels highly confusing and uncertain as two trends collide. One, the government response to COVID-19 has hardly been consistent, tests to masks to vaccines. Two, employers largely bungled communications around returning to the office; for example, parents have been asked to work in person even as their children’s back-to-school (and vaccine) schedules are unknown.

The CDC’s latest guidance on mask usage in schools is significant, especially for working parents. “Where community spread already exists, then children in school acts as a kind of super-spreader hub for the community, rapidly saturating members with exposure events,” said Ravi Starzl, CEO of BioPlx and Firebreak Inc., a company that develops antibody-based solutions to solve health crises. “The guidance that children should wear masks in school is effectively signaling that the CDC expects community spread to be present throughout the country for the foreseeable future.”

(Which means that two-week quarantine periods and school shutdowns are not just in our past anymore.)

To return or not?

Faced with rising cases, some companies are calling off the mandates to return to work, said JiNan Glasgow-George, an intellectual property attorney and CEO of Patent Forecast. She is opposed to employers mandating vaccines.

“We are open and most of our clients are open with the hybrid model, but larger companies are remaining remote,” she said. “There’s no substitute for working in person and the hybrid model and remote work option is working temporarily, but isn’t sustainable long term yet.”

Other experts favor mandating vaccinations for employees and customers and those encountered in the course of doing business, and say there are other steps companies can take to keep employees safe. Starzl cites masks and providing ample ventilation, among them.

The mental health toll

“The spread of delta variant has re-introduced cases of anxiety, just as Americans are enjoying their freedom and returning to normal work life again,” said Dr. Tiago Reis Marques, psychiatrist and CEO of Pasithea Therapeutics, a biotech firm focused on mental-health research. “After such a transformational experience like COVID, we can predict a transitional period, normally known as ‘re-entry’ where the perception of risk will gradually reduce with increased exposure to social interaction. As a result of the delta variant, this risk will be disrupted and will delay the process of ‘re-entry,’ eventually causing some to retract and isolate again and potentially worsening their mental health.”

He and other experts say delta is a harbinger of the road ahead. “We are facing a situation where society is exposed to one stressful event after another,” Marques said. “Typical work life may never be quite the same.”

Indeed, the rush to get back to “normal” might have gotten us into this mess. Rather than make up for missed happy hours or offsites, employers and employees must focus on all the ways they can combat transmission now.

“So long as we provide a chain of hosts for the virus, new and more dangerous variants will emerge regularly. Breaking the chain of transmission is the only way to end this pandemic for the long term,” Starzl said. “We should set our minds on how to best accomplish that, rather than focus on what we can’t have because of the pandemic.