The recent news that United Airlines is bringing back non-vaccinated workers later this month in spite of its mandatory vaccine policy comes amid lingering staffing shortages, an increase in air travel, and a time when the number and severity of COVID-19 cases is falling across the U.S. Will the majority of other companies that established a mandatory vaccine policy follow suit? Deborah Brouwer, managing partner of Detroit-based labor and employment law firm Nemeth Law PC, looks at the issue.
"There is a very real desire by employers to return to business as 'usual' as it can be. While that does not mean that the workplace will ever return to all of its pre-pandemic ways, I do anticipate an easing of pandemic policies, including COVID-19 mandates, that may impede the perceived return to normalcy," Brouwer said.
While her firm continues to get COVID-related questions in the context of employment, Brouwer notes there is a definite shift back to traditional issues that employers regularly tackled prior to the pandemic, such as leave and disability requests, performance-based disciplines and the need for management-level training. Regardless of industry, though, the staffing shortage is the subtext of most issues, and seems to be plaguing employers at all levels of employment.
"They say it's a seller's market for homes; well, it's a worker's market for jobs and employers know it and they are desperate for solutions," Brouwer said. "In United's case, their vaccination rate was more than 96%, so it may have seemed low risk to bring unvaccinated employees back. But large employers often set the tone for HR policies and practices nationally, so it's highly likely that other companies will look to that decision for their own policy making purposes when it comes to vaccine mandates."
Brouwer notes that employers who do change their vaccine policies need to be extremely clear that previous mandate policies may be reinstated, either whole or in part, should COVID numbers increase significantly.
"Some employers mandated vaccines even for employers who worked remotely. A spike in COVID in the current environment may prompt the vaccine requirement for front line workers, but not necessarily extend to the remote workforce or bring back social distancing policies or mask mandates even if not suggested by CDC guidelines," Brouwer said. "I don't see employers who did not have a vaccine mandate previously introducing one in the future. Whenever employers introduce a new approach, though, regardless of the subject matter, regular, consistent communication is key."
Brouwer said the next issue regarding vaccine mandates is likely to be the booster shot.
"With increasing discussion by experts on the eventual need of a fourth shot, we may well again be looking at a vaccine mandate-type question, but this time it may be more aligned to an annual flu shot. And employers who currently require the flu shot will likely have an easier time encouraging, but likely not mandating, a COVID booster," Brouwer said.
