By Amanda Ottaway

Law360 (May 25, 2021, 6:03 PM EDT ) Eighty-three percent of U.S. employers aren't forcing workers to get the COVID-19 vaccine, even though most businesses want their employees to get the jab, according to a Fisher Phillips survey of professionals including human resources staff, counsel and executives released Tuesday.

Three-quarters of employers said they were encouraging their workers to get the shot, according to the survey of over 600 in-house counsel that Fisher Phillips conducted between May 14 and May 19. Just 4% said they were mandating the vaccine, while 13% said they still hadn't decided.

Fisher Phillips partner Kevin Troutman, who leads the firm's vaccine work group, said he was glad to see so many encouraging inoculations.

"My understanding in talking to medical people and scientists is the more people get vaccinated, the sooner we're going to return to normal, the more people are going to be able to get back to their jobs in traditional normal operating modes," he said in an interview.

Of employers that said they had made adjustments in favor of requiring or encouraging vaccination, 68% gave a practical reason: to reduce the risk of the virus making people sick. Troutman said that matches up with what he's seen in his practice.

"I've been working with clients for months now, talking about COVID and vaccinations and how to implement, what their options are, and these survey findings seem to be pretty consistent with the conversations that I've been having with clients over the last year," Troutman said.

Thirty-six percent of respondents said their pro-vaccine rationale was swayed in that direction by an aim to ditch masks in the wake of the Center for Disease Control and Prevention's abrupt change in guidance earlier this month. The agency announced that vaccinated people don't have to wear masks or distance inside or outside. The survey was conducted in the immediate aftermath of that guidance, Troutman said.

Nearly a third of employers said their pro-shot stance had been swayed by the fact that the vaccines "seem safe now," while another near-third said they thought their workers were "more receptive" to inoculations, and 31% said vaccines are a cause "for the greater good," the survey found. Over a quarter said they're pro-vaccine because they want their remote employees to work more in person.

Of employers that chose not to mandate, over half said they thought their workers were already vaccinated if they wanted to be, while 15% said they don't think their employees want the shot, and 3% were concerned about the vaccines' safety. Almost a third, though, expressed concern that the law bars them from mandating the jab.

Troutman, who said the survey respondents were distributed across the country and "in a pretty good cross-section of industries," said he was a bit surprised by how many employers expressed fear of legal ramifications for a mandate.

The high number could have had something to do with how the question was phrased and could instead reflect employers' broad concerns about being sued, for example by employees who are "strongly opposed" to vaccination, he said.

"I think if anybody really looked at what the legal authorities are saying out there, it's pretty clear that employers have the right to require vaccinations," except in states that specifically forbid them, he said.

In a similar survey the firm conducted in January, 9% of employers said they were considering a mandate and 27% were undecided. Over three-quarters said in January that they'd go the encouragement route.

--Additional reporting by Vin Gurrieri and Anne Cullen. Editing by Vincent Sherry. 

Correction: An earlier version of this survey misidentified the survey respondents. The error has been corrected. 

For a reprint of this article, please contact reprints@law360.com.