August 30, 2021

A Mandate By Any Other Name…

“A Rose is Not a Rose,” wrote Richard and Robert Sherman in 1978.  That was contrary to Gertrude Stein’s “A rose is a rose is a rose…” For me, the words “mandatory” or “required” have been used with equal confusion.  Take “mandatory” harassment training.  But employees who do not attend are not usually fired. So, was it really mandatory? Not. I am reading and hearing the same or similar versions when it comes to “mandatory” vaccination programs.  Here, I find the devil is not in the detail.  I find it quite plain on its face.  If you have option if you do not want to be vaccinated,  then it is not a mandate.  If you have to get a vaccination or be fired, that’s a mandate.

So, whether you represent an employer or are standing in the shoes of the employee, pause. Take a breath. Don’t panic. Remain calm.  If you hear about a mandatory vaccine requirement, just ask some questions.  As an employee, what are your objections to getting the vaccine?  Learn if your reason provides you with any legal protection.  What are your options if you do not want to get vaccinated?

Take the White House.  While President Biden urges people to get vaccinated, “please, please…do it now,” White House staff and onsite contractors are required to attest to being fully vaccinated or submit to weekly or biweekly testing.

Stay tuned. If you follow me on LinkedIn or Twitter you may have seen my pun/post last week. The U.S. Supreme Court declined to hear a case challenging a University’s vaccine mandate.  I suspect we will see more to follow in the private and public sector.  Time will tell.  Until then, employers considering vaccine “mandates” might give thought to:

  • Who will have to be vaccinated? All employees or just those with direct customer/client/patient contact? Will you administer the vaccine or sponsor a third-party to do so?  Be aware of the implications of doing so.
  • What do you mean by vaccinated? If you mean “fully” vaccinated, define it. Consider what part booster shots might play in that definition.
  • Where? Will your mandate vary based on the community-based infection rates? If so, what threshold will you use?
  • When? How much time will you give employees to comply with your requirement?

Throughout, consider related guidance for employers and COVID-19 vaccinations issued by the U.S. EEOC (See Section K). Also, talk to your company’s employment counsel for guidance, including any state or local law mandates or restrictions.