To Mandate, or Not To Mandate?

There was more good news on the COVID front last week. It looks like vaccine distribution is going to start in the United States before the New Year, and the high-priority candidates will start receiving their inoculations. There is hope that by summer most of the American population will be immunized and that, finally, we will have turned the corner on this awful disease.
            With that news we began seeing stories about whether or not employers could require employees to get the vaccine. It is an interesting question, but impractical. I view the issue differently, and I think more practically.
            Why would an employer want to mandate an employee put something in his body that the employee does not feel is best for him? And by the same token, why wouldn’t an employee want to get the immunity that apparently comes with a vaccination?
            We are Americans, and we value individualism, freedom, and independence. When someone tells us to do something against our will, we tend to recoil and prepare to fight. It is in our nature.
            But like most issues in the real world, there is a middle ground. This is not simply a question of “to mandate or not to mandate,” as Hamlet might paraphrase.
            This vaccine question is a question of interests. And where interests are involved, a negotiation should follow.
            It would be foolish, in my opinion, for an employer to mandate that an employee get a vaccination at this point, even assuming that the employer has the legal authority to do so. That is because forcing an employee to do something against his will, at the risk of losing his job, will lead to anger and distrust – not just from the affected employee but from other employees as well. And that is simply not good for business or relationships.
            The better course is for employers to encourage vaccinations if that is in the employer’s interest. And it is better for an employee to know exactly what his obligations are with respect to vaccinations and employment. A discussion is therefore necessary between the parties.
            I envision a reasoned negotiation going this way. An employer can encourage employees to get vaccinated in a couple of ways. First, the employer can provide job protection to an employee who gets vaccinated and subsequently becomes ill from side effects or from COVID itself. This would include paid time off to deal with side effects or illness.
            On the flip side, the employer can implement a policy that employees who do not get vaccinated and subsequently become ill with the virus, will be required to take a leave from work that will require use and exhaustion of paid time off if available, and unpaid if not available. For those employees who do not qualify for FMLA leave, an employer can guarantee FMLA protections in any event to those employees who miss work because of COVID-related illness if they get the vaccination.
            From the employee side, employees should speak to employers now about the employer’s policy regarding vaccinations. I recently negotiated language into a collective bargaining agreement specifically stating that employees could not be mandated to get vaccines absent a statutory requirement under the law.
            I said from the outset that COVID would require clarity and transparency in the employment relationship. Employers and employees would need to be open to discussion as we all navigated this unprecedented time. The same remains true now as we are on the doorstep of eradication.

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