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Should companies require employees to take the vaccine?

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Depending on the poll you read, 40% to 50% of Americans say they will not get a coronavirus vaccine when it first becomes available to them. In a survey of firefighters in New York City, who are essential workers at high risk of infection, 55% said they do not intend to take a vaccine if offered by their departments.

The possibility that large swaths of the population may refuse — or simply delay — getting vaccinated presents a perilous challenge to the health of the nation and the economy. Widespread coronavirus vaccinations are not only the best way to keep people from dying, they will also help revive business and the economy.

There is a way to get greater compliance: Businesses, which have spent the past several years championing their social responsibility, can require vaccination of employees and, in many cases, customers.

Dr. Anthony Fauci, the nation’s top infectious disease expert, told me that until 75% of people are vaccinated, we should all continue to wear masks and maintain social distancing, even if we’ve been vaccinated. That means movie theaters, indoor dining, sporting events and travel would remain challenged.

In other words, unless three-quarters of the nation is vaccinated, the engine of the economy will not jump start the way so many are hoping. The debates about health restrictions and economic stimulus plans would continue.

If individuals are left to make the vaccine decision by themselves, a 75% compliance rate may be unattainable.

That’s why business leaders are so uniquely positioned: They can tell employees that they may only return to the workplace if they get vaccinated.

This could be made compulsory for workers everywhere, from factories to offices and beyond. Mandating vaccines would be especially important to help protect workers in minority and lower socioeconomic communities that have been hardest hit in the pandemic. According to a Pew Research poll, only 42% of Black Americans intend to get vaccinated.

Beyond social welfare, there’s a persuasive argument that a vaccination mandate could be considered a workplace benefit: If employees knew that everyone around them is vaccinated, they would feel more comfortable working there.

And it could create a compelling competitive advantage. A service like Uber, for example, would be more attractive to customers if the company said that all of its drivers were vaccinated. The same could be said for Walmart, Starbucks or any other store or restaurant.

Some companies could even require their customers to be vaccinated, which would have a bigger impact on the compliance rate and show genuine leadership. If, for example, an airline said that only passengers who were vaccinated could fly on its planes, it would instantly create the “safest” airline to fly. And it would make employees who interact with customers feel safer, too.

Can a company do that? The answer is: Yes.

The law establishes that both the public and private sector can require vaccinations. The New York State Bar Association, in fact, recently recommended that the state consider making vaccinations mandatory. Public and private schools require all sorts of vaccinations for students. Many hospitals require vaccinations of its employees. The list goes on. (Medical or religious exemptions exist, and should be allowed in the case of a coronavirus vaccine as well.)

In 1905, the Supreme Court ruled against a pastor, Henning Jacobson, who had sued the state of Massachusetts for requiring residents to take a vaccine after an outbreak of smallpox. “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others,” the court ruled. “It is, then, liberty regulated by law.”

That ruling, and others after, it have repeatedly reaffirmed this principle. As for private businesses, they can choose to hire, fire and transact with anyone, unless they discriminate based on a protected category.

There is still room for interpretation. Lawyers could argue that prior cases didn’t consider a drug authorized only for emergency use by the FDA, as the early coronavirus vaccines will be. Or perhaps a more conservative-leaning Supreme Court would be open to revisiting prior precedent.

I spoke with executives at companies in various industries to see whether they intend to require vaccination of employees or customers. None wanted to speak on the record.

Almost all said they planned to recommend the vaccine, but not make it compulsory. Several said that they have tried to create a culture of trust, and a vaccine mandate would undermine that trust. Others worried about legal liability if an employee had adverse side effects from the vaccine. Some said they would like to mandate the vaccine, but worried that a backlash could spiral into a public-relations nightmare.

This is not a hypothetical thought experiment. When the chief executive of Qantas, the Australian airline, said he would require passengers to be vaccinated — “certainly for international visitors coming out and people leaving the country, we think that’s a necessity,” he said — the backlash was swift. A travel agency in Britain stopped booking flights with the airline, stating that “we feel that bodily autonomy with regard to medical intervention is a personal choice and not something to be forced onto people by businesses.”

It is understandable that executives would be anxious about courting potential controversy, but leadership is about making difficult decisions when the stakes are high. Simply recommending that people take the vaccine may not be enough.

It seems inconsistent for companies to lobby Congress to provide rescue funds and liability protection against COVID-19 lawsuits and not at the same time robustly support vaccine mandates.

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