With COVID-19 immunizations underway, businesses in every industry are grappling with drafting and implementing vaccination policies: Will they enforce vaccine mandates? Or will they instead focus on encouraging vaccination? What will the impact be on other COVID-19-related health and safety protocols?
These concerns may be especially pressing for retailers, for whom on-site workers are more often a necessity.
In mid-January, more than 1,800 C-suite executives, in-house counsel and human resources professionals participated in the COVID-19 Vaccine Employer Survey from employment and labor law practice firm Littler Mendelson. Here are the key findings from respondents in the retail industry.
Vaccine Mandates Are Unlikely, Largely Due to Employee Relations Concerns
Guidance from the U.S. Equal Employment Opportunity Commission, released in December 2020, essentially says that employers can require workers to receive a COVID-19 vaccination without violating non-discrimination laws. At the same time, the guidance made clear that they may be obligated to provide exemptions or accommodations to employees with religious objections to vaccines and those with disabilities that may prevent them from getting vaccinated.
The Littler survey data suggests that just because employers can mandate vaccinations doesn’t mean they feel they should. No retail industry respondents said they currently mandate vaccination and only 4% plan to once vaccinations are readily available and/or the Food and Drug Administration grants full approval.
Though those figures might go up in the coming months – 48% of retail industry respondents haven’t written off the idea of a mandate completely – another 48% have already decided that they will not require employees to be vaccinated. These percentages were fairly consistent with the sentiment expressed by respondents across all industries surveyed.
When asked about their concerns with making the vaccine mandatory, 64% of all respondents were understandably wary of the legal liabilities if an employee were to experience an adverse reaction, while another 57% questioned the effectiveness of a mandate, given the number of potential legal exemptions. The latter figure was even higher for retailers, of which 72% expressed concern over a mandate’s effectiveness.
But employers' top concerns – with which retail respondents aligned – center around employee relations issues. These include pushback from employees who refuse to get the COVID-19 vaccine or oppose vaccination generally (79% of all respondents and 88% of retail industry respondents) and the impact a mandate might have on company culture and employee morale (67% of all respondents and 76% of retail industry respondents).
In the survey's open-ended question, retail respondents revealed other concerns, including struggles with setting policies for their organizations' corporate headquarters and retail stores. Recognizing that there is a greater risk of infection for employees at stores due to customer interaction, one respondent asked, "Do you have to have two separate mandates?"
A few retail respondents also noted difficulties navigating various state vaccine rollout plans and the states' differing classifications of an “essential worker” based on priorities established by various states. Still, others reported being concerned about their organizations’ bandwidth to coordinate the planning, communications and supply chain of the vaccine.
It follows, then, that when asked if they would like to see states or municipalities making the decisions about vaccine mandates to take the burden off their organizations, nearly half (45%) of retail industry employers said yes.
Significant Focus on Encouraging Vaccination
While most organizations indicated that they are not currently mandating employees receive the vaccine, they are planning to take several steps to encourage vaccination.
Nearly 90% of all respondents said they would share information with employees, including how to get vaccinated and the benefits of doing so. With details around COVID-19 vaccines and their distribution evolving rapidly, providing clear and fact-based information is an important step for retailers to take in order to help employees receive vaccinations.
In addition, 37% said they would offer vaccine administration at their facilities to increase convenience, assuming they gained the approval to do so.
Responses from retailers tended to follow suit with the figures above. One area of slight difference, however, was organizations offering paid time off for employees to receive or recover from the vaccine: 33% of all employers surveyed report plans to offer this, but only 25% of retail respondents said the same.
Continued Focus on COVID-19 Safety Precautions
As more and more Americans are vaccinated, the ability to return to on-site work and for consumers to do more shopping in stores will become more of a reality. But as different segments of the population will be vaccinated in different stages, navigating the return of employees who are working remotely to the physical workplace and continuing safety protocols raises a host of questions.
The survey asked organizations about their current plans to bring workers who have been working remotely back to the office. Nearly half (49%) are allowing those already working remotely to continue doing so through the summer. Slightly more (52%) retail employers are planning to continue to allow remote work for those who are able to do so in the same time period.
Even after vaccines are readily available, retailers and other businesses plan to keep several pandemic-related precautions in place. Most respondents (81%) said they will continue requiring or encouraging mask use; 66% said they would modify workspaces to maintain distance between workers; 62% will limit or restrict employee contact in common areas and 56% will increase workplace cleanings. Retailers' responses did not significantly differ from the full results on these actions, suggesting that they plan to continue mask wearing, social distancing and other safety protocols to keep employees and customers safe in their facilities.
The COVID-19 vaccine is undeniably a welcome development, but given the widespread disruption caused by the pandemic, it’s important to keep in mind that vaccines are one part of a larger and ongoing effort to ensure workplace safety. Retailers, whose workforces tend to be split between on-site locations (where it’s harder to conduct business remotely) and corporate headquarters (where remote work is more feasible), must be especially cognizant of the multi-faceted approach needed when it comes to not only vaccines, but also safety precautions more broadly.
Barry Hartstein Barry Hartstein is a shareholder at Littler Mendelson, the world's largest employment and labor law practice representing management. He leads the firm's COVID-19 Vaccination Working Group and serves as co-chair of Littler’s EEO & Diversity Practice Group. He can be reached at [email protected].