COVID-19 inoculations will finally be widely available in 2021 — but not everybody will want one.
According to a Dec. 3 survey from the Pew Research Center, 60% of Americans said they would get a COVID-19 vaccine. That number has swung from 72% in May to just 51% in September. A recent
Associated Press poll found that about half said they were ready, and a
Gallup survey found 63% willing to get a vaccine following a go-ahead from the
U.S. Food and Drug Administration.
But more than two in 10 people in the December Pew survey said they're "pretty certain" they will refuse the shots. Whether employers take it upon themselves to require or provide vaccines, the conversation around the rollout is something they should be aware of, attorneys say.
"I think it's going to be dangerous for an employer to decide what's good or bad for society. I think they should focus on what's going to be a nexus to their workplace," said
Duane Morris LLP partner Jonathan Segal.
Here are five tips for employers worried about contentious vaccine debates flaring up in the workplace.
Spotlight Accurate Information
Betty Graumlich of
Reed Smith LLP encouraged employers to get the most accurate clinical vaccine information possible and share it with their workers.
While open questions remain about whether employers will be able to mandate a COVID-19 vaccine, Graumlich said companies could provide wellness incentives to encourage it, which could include gift cards or allowing workers to get the shot on company time.
In many cases it might not be a big deal if an employee expresses concern about vaccinations, said Dan Prywes of
Morris Manning & Martin LLP.
"The best course of action might be to simply tell the employee, 'Look, we are supporting vaccination, and that's the company's position,'" he said.
While Prywes said it might be "kind of extreme" to fire or discipline an employee for bringing up a concern in a small setting, that might change in a large meeting where the company CEO is announcing pro-vaccination policies and a worker had been warned ahead of time not to speak up in opposition.
Companies have a "very legitimate interest in trying to encourage people to take precautions," he added.
Segal of Duane Morris noted that opening communication lines early could also come in handy in the long run. If an employee expresses antigovernment views or political opposition to a vaccine, he said: "Don't shut it down. Listen to it and document it."
Don't Forget About Labor Law, Even if You're Nonunion
The
National Labor Relations Act 
gives employees the right to discuss with each other the terms and conditions of their employment. If a company is planning to mandate the vaccine to the extent the law allows — with some religious and medical exemptions — its workers' discussions about it are related to terms and conditions of the workplace, Prywes warned.
Specifically, Section 7 of the NLRA protects employees' concerted activities that address wages or working conditions.
Many employers are currently trying to decide whether to mandate the COVID-19 vaccine, Segal said. Reed Smith's Graumlich noted that some such decisions might hinge on guidance from the
U.S. Department of Labor and
U.S. Equal Employment Opportunity Commission. The EEOC issued
guidance Dec. 16.
"If it were made a condition of employment, then Section 7 [of the NLRA] would come into play," Graumlich said of vaccination.
But Segal pointed out that Section 7 does have limits when it comes to employee speech.
"Even if it's concerted, it may not be protected if it's disruptive," he said, adding that the question then would be just how disruptive the anti-vax speech actually is to the workplace.
Graumlich said the role of the employer will likely vary on a case-by-case basis. While spouting anti-vax views in the workplace is not as grievous as racist or hate speech, she said it could still cause problems.
"If you have an employee who is an ardent anti-vaxxer who is literally getting in another employee's face, and telling them they're wrong and they're endangering their life, et cetera — then I think you can take them aside and tell them to stop," she said, "because that's not consistent with maintaining a respectful workplace environment."
Take Note of People's Stated Rationales
While the general expression of anti-vax views does not clearly fall into a category like religious or political speech, it could still cause big problems in the workplace, experts said.
"We have laws and well-established policies against discriminatory comments, and the anti-vax I think is different, because it does not violate those kinds of policies," Prywes said. "People may be misinformed or have poor judgment, but just generally in society we do like to have free speech."
If employees are outspoken in opposition to the vaccine, employers should take note of their reasons, Segal said. For example, if someone claims a sincerely held religious belief, it could be risky for the employer to try to keep them from speaking, he said.
Where anti-vax speech could go too far, Segal said, is if employees stir up "irrational" fears or concerns and conspiracy theories not grounded in science, which he called extreme and said he would categorize as unprotected political speech.
"It could make those who have taken a vaccine uncomfortable," Segal said. "Employers, like courts, are going to have a very difficult time in this area, parsing the line between religious beliefs and politics."
As of the Dec. 3 Pew study, there appears to be clear political divisions on the vaccination front. Just half of Republicans and Republican-leaning people said they would get the shot, while 69% of their Democratic counterparts said they would.
"On both sides, you've got to look for incendiary rhetoric and address it," Segal said.
For example, an employer might need to step in if one worker, who claims their sincerely held religious beliefs include vaccination, accuses an anti-vax co-worker of infringing on those beliefs, another conversation that could turn ugly.
Segal also pointed out that from the
U.S. Supreme Court on down, "courts are focusing more on religious liberty," and it's reasonable to expect the nation's highest court to prioritize it.
Though she said anti-vax speech doesn't rise to the level of calling someone a racial epithet, Graumlich also said it could still cause conflict, the same way other emotionally or politically charged workplace speech can.
"I think it sort of has to be case-by-case, and what most employers should strive to do is to keep a professional, respectful workplace," she said. "There is no right in the workplace to batter your co-worker with your own opinions."
Don't Stifle Legitimate Dialogue
It's normal for employees to have questions about the vaccine, experts said. Statistics show Black Americans, for example, are wary of the COVID-19 vaccine after centuries of enduring exploitation in medicine, though vaccine hesitancy should be distinguished from anti-vax sentiment, which stems from misinformation.
In a healthy workplace, employees should feel comfortable bringing up legitimate concerns, attorneys said. They also pointed out that it might backfire to punish an anti-vaxxer for speaking up at work.
It's also not advisable to try to regulate employees' speech outside of work, Graumlich said. She added that while a complaint about anti-vax speech is likely to come from an employee taking issue with something a co-worker posted on social media, the employer itself probably shouldn't spend time monitoring those channels.
Prywes agreed, saying it's "legally risky" for an employer to forbid speech by an employee who's off the clock.
But Don't Let Debate Become Disruption
Segal recalled the period after the Supreme Court ruled in 2015 that the federal government had to recognize same-sex marriage as another occasion when employers had to navigate different views on a hot-button topic.
He suggested acknowledging that there might be a "diversity of opinions" on the COVID-19 vaccine and calling for respectful discussions.
If there are outliers — employees targeting others with opposing views, for example — an employer could focus on addressing problems directly with them.
Employers have an interest in providing a safe workplace where they can get things done, Prywes said.
"If the employee is trying to actively discourage people from getting vaccinated, that is different than just making a reasonable inquiry about it," he said.
"I'm sure there's a middle ground between those two, and so I think you need to draw the line at the point where you're talking about public and prominent dissemination of anti-vax views."
But Prywes predicted that employers will have a leg up in the courts when it comes to steps they take to discourage employees from spreading anti-vax views.
"On these kinds of issues, I think the courts are likely to be quite deferential to employers," Prywes said. "Even though we like to have freedom of expression, we also like to have freedom of survival."
--Editing by Haylee Pearl and Joyce Laskowski.
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