In response to the evolving threat of the Delta variant of COVID-19, employers may want to consider a few different approaches in response. These could include updating their mask policies if they’re back in the office, delaying their return to in-person work, or even implementing mandatory vaccination policies.
Read on for what employers should consider as the highly contagious Delta variant spreads.
Note: This article has been updated to reflect the FDA's full approval of the Pfizer vaccine and DOJ guidance regarding mandatory vaccination.
The Centers for Disease Control and Prevention (CDC) issued a new mask recommendation in response to the rise in cases of the COVID-19 Delta variant, which has hit unvaccinated populations particularly hard. According to the CDC, the strain is responsible for more than 83% of all active coronavirus cases in the U.S.; CNN reports that less than half of all Americans have been fully vaccinated.
The CDC recommends that people who live and work in areas where cases of the COVID-19 Delta variant are on the rise—in other words, the area is experiencing substantial or high transmission—should wear masks indoors in public. Likewise, CDC director Dr. Rochelle P. Walensky hosted a media briefing in late July and stated that this recommendation applies to both unvaccinated and vaccinated individuals.
On Aug. 23, the U.S. Food and Drug Administration (FDA) fully approved the Pfizer-BioNTech COVID-19 vaccine. With this announcement, more employers may implement vaccine requirements or mandates. Since the FDA's decision, both CVS and Chevron have announced vaccine requirements for employees and employers are beginning to implement insurance charges for the unvaccinated.
Many Job Postings Now Requiring Vaccination
Job Postings that require vaccination are up 90% according to a study conducted by Indeed. The article explains that job postings with vaccinations are increasing in several key sectors, including
Many of these sectors did not have mask mandates at all prior to this increase. Coming on the heels of the FDA approval of the Pfizer vaccine, was a call to action by President Biden. He has urged companies to begin enforcing stricter vaccination requirements. Companies such as Walmart, Tyson Foods, and Microsoft have already established guidelines for employee vaccination. With the delta variant on the rise, many companies will look to tighten their current mandates.
As more contagious variants of coronavirus spread in the United States, some large employers have already delayed return-to-office dates. For example, Apple said that it would postpone its return to the office from September to October 2021 due to the surge in COVID-19 variant cases.
Some private employers have taken more stringent measures. On July 28, 2021, Google and Facebook both announced that all employees must be vaccinated if they wish to work in person. Other companies, including Lyft and Netflix, have already implemented stricter requirements for in-person employees.
The White House has announced that Federal workers and contractors are now required to be vaccinated against COVID-19 as a condition of employment. (This requirement has since been broadened to include the military.) Individuals who don’t provide proof of vaccination will be required to submit to ongoing testing requirements as an additional safety precaution. New York City, New York State, and California all implemented similar requirements as well for local and state employees.
In short, yes, it is legal for private employers to require employees to be vaccinated as a condition of employment. The Equal Employment Opportunity Commission (EEOC) supports this approach, stating that “[t]he federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”
However, there are exceptions and limitations. These cases can include:
Several recent lawsuits have argued that employers cannot mandate vaccination based on the FDA's current "emergency use authorization" (EUA) of COVID vaccines. However, courts have so far dismissed these arguments, noting that employer mandates are not "coercive" and that employers are within their rights to terminate employees for refusing directives, including vaccination.
The Department of Justice (DOJ) has affirmed the legality of employer vaccine mandates as they apply to the FDA's EUA. The memo presumes, though, "other federal, state, or local laws or regulations...might restrict the ability of public and private entities to adopt particular vaccination policies."
If your organization decides to make coronavirus vaccination mandatory as a condition of employment, this decision should be communicated to employees as clearly as possible. Use the following template to alert teammates about this policy:
Hi Team,
As the Delta variant continues to spread across the country, we’ve decided to implement a new mandatory COVID-19 vaccination policy for the safety of the people in our organization. Please see below for some additional items pertaining to this decision.
Anticipated FAQ
Thank you,
[Name]