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Employer: Unvaccinated Need Not Apply

Delta Airlines is taking a unique approach to getting its workforce COVID-19 vaccine-compliant:  it won’t hire anyone new who refuses to get the jab.

“Delta knows that vaccines are the best tool available to protect one another and bring an end to the pandemic, and the airline has made great progress to achieve herd immunity within its workforce, with more than 60 percent of employees already vaccinated,” the company said in a press release. “To help maintain this trajectory, Delta will require all new hires in the U.S. to be vaccinated against COVID-19, unless they qualify for an accommodation, effective Monday, May 17.”

 Although a few industries now require employees to get the vaccine, such as assisted living centers and the production company for the Broadway musical “Hamilton,” Delta is the only major airline to take a major step in compelling employees to vaccinate.

Initial indicators showed enthusiasm for vaccine mandates among employers. A study published in April 2021 by Arizona State University found that 40 percent of 1,168 surveyed companies would require all employees to be vaccinated.

However, few companies have followed through. For example, United Airlines CEO Scott Kirby made headlines in January when he came out in favor of mandating vaccines for employees. Nearly six months later, no such policy has been implemented.

Mixed Signals, Federal Regulations

In December, the Equal Employment Opportunity Commission updated its guidelines stating companies can legally require employees to vaccinate themselves against the coronavirus, with exceptions for those who have a medical or religious accommodation.

The move was controversial because, in an August 2020 presentation by an immunization advisory committee of the U.S. Centers of Disease Control and Prevention, Amanda Cohn, M.D. stated that vaccines could not be mandatory when they are under emergency use authorization.

Despite the rule change, however, most companies still seem to be shying away from mandates. A mere .5 percent of businesses currently mandate the vaccine, while only 6 percent said they plan to mandate the vaccine once it was readily available, according to a February survey by employment law firm Littler.

Instead, companies seem to be relying on social pressure and incentives. Food City announced that employees who have been fully vaccinated will have a logo on their nametags so colleagues and customers know their immunization status. Walmart and Sam’s Club are offering employees a $75 bonus for presenting a completed vaccine certificate, and staff can work mask-free if they answer “yes” to a vaccine question on a daily health survey. Walt Disney World set up a private vaccine site on park property to encourage employees to get inoculated. Darden Restaurants, which owns Olive Garden, is promising employees two hours of pay for each dose of the vaccine they receive.

Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies, has written in favor of business’ right to condition employment on vaccine status. He cites freedom of association and freedom of contract.

“Business owners should have a right to make this decision for themselves, not have the government impose it on them,” Olson told Health Care News. “Each business situation is different. If you’re a small business with an immunocompromised owner, offering a service that requires extended personal contact and operating from a poorly ventilated basement space, it is not wrong to want to protect yourself, your clients, and your employees. It could make the difference in whether you can reopen your hair salon, tutoring service, or live music venue. You should have that right.”

The Stick Approach

Other employers are requiring employees to continue wearing face masks unless they show proof of vaccination. Employers may feel they are legally protecting themselves in case other employees, patients, or customers become sick, and the mask can serve as a “warning sign.“

“We do not see much hesitancy in employers requiring vaccinations, given the long-standing law, reaffirmed recently by the EEOC, and have seen very few employers actually recognize and act favorably on requests for medical/disability or religious exemptions,” said Doug Seaton, president of Upper Midwest Law Center, a public interest law firm that focuses on government overreach and protection of rule of law.

The news for employees is not encouraging, Seaton says.

“We may have a skewed sample because we likely only hear from employees who experience problems getting exemptions credited, and many of them do not meet the threshold for those exemptions,” Seaton told Health Care News.

“We counsel that challenging an exemption denial is a lengthy process with risks, because termination of employment could occur, filing a discrimination charge and fighting through the system can take years, and there is no guarantee of success,” Seaton said. “We hope someone is willing to do so, but can’t really recommend it, given these downsides.”

States, Private Companies Decide

Indeed, as cultural and political institutions have pushed for vaccines and vaccine passports, the American public has largely pushed back—from both sides of the aisle. Red states such as Alabama, Florida, Utah, and Wyoming have already banned government-mandated vaccine passports.

At the other end of the political spectrum, the American Civil Liberties Union has also come out against passports. In an article titled, “There’s a Lot That Can Go Wrong With ‘Vaccine Passports,’” the ACLU cited invasion of privacy, abuse, and centralized data storage as a few reasons to be wary of a passport system.

So far, the Biden administration has left vaccine policy mostly up to state and local governments, at least in its messaging.

In March, White House Press Secretary Jen Psaki said there would be “no centralized, universal federal vaccinations database and no federal mandate requiring everyone to obtain a single vaccination credential.” However, she noted that the “development of a vaccine passport or whatever you want to call it will be driven by the private sector.”

Madeline Peltzer (mpeltzer@hillsdale.edu) writes from Hillsdale, Michigan.

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