Despite federal guidance on COVID-19 vaccines, most Missouri employers stop short of mandates

On May 28, the Equal Employment Opportunity Commission offered new guidance to employers affirming their right to require employees to be vaccinated against COVID-19, but Missouri businesses aren’t in any hurry to mandate vaccinations. While many businesses are offering paid time off and other incentives to encourage vaccination, other legal concerns are preventing many from making them required.

Though it’s increasingly common for health care facilities to require certain vaccines like the flu vaccine to prevent the spread of disease to patients, it’s less common for employers in the commercial sector to require any vaccines, said L.J. Tan, chief strategy officer at the Immunization Action Coalition, an advocacy group working to increase vaccination rates in the private sector.

However, given how easily COVID-19 spreads, Tan said businesses may have more of an incentive to require vaccination to keep their doors open.

“I think that’s one of the factors that employers are thinking (of),” he said. “If we want to bring everyone back to work, we need to get them vaccinated so that we don’t have an outbreak. Because if there’s an outbreak, and we have shut everything down again, send everybody home again, that’s more expensive.”

A few employers in the St. Louis area have tried to mandate or are currently mandating COVID-19 vaccines. On Tuesday, St. Louis University announced all students, faculty and staff will be required to receive a COVID-19 vaccination before returning to campus in the fall. Two other Missouri universities, Washington University in St. Louis and Culver Stockton College in Canton, are requiring inoculations for students, but they have yet to make decisions regarding faculty.

Construction firm Clayco, which employs 800 people at its St. Louis office, announced in early April that all employees would be required to receive a COVID-19 vaccine and return to the office by May 10. However, that mandate was revoked after April 23 guidance from the Occupational Safety and Health Administration requiring businesses that mandate COVID-19 vaccination report any adverse vaccine reactions, which would create higher worker compensation costs.

Though OSHA’s guidance was revoked on May 21 after concerns it discouraged vaccination efforts, Clayco has yet to reinstate its vaccine mandate despite all employees returning to the office on May 10. Clayco Executive Director Bob Clark said 70% of the company’s employees were vaccinated before the mandate was revoked, and he would consider reinstating a mandate if infections rose due to variants or more businesses began issuing mandates.

Bob Clark | Courtesy of Clayco

“We’ve been talking to our employees, and we’ve been asking people what they want and what would make them feel safe coming back,” Clark said. “And the majority of the people said, ‘I would feel safer if everybody else was vaccinated.’”

Despite the EEOC guidance, legal issues could still arise from COVID-19 vaccine mandates, said Peggie Smith, a labor law professor at Washington University.

Lawsuits are currently pending in California, New Mexico and North Carolina that argue employers cannot mandate COVID-19 vaccines because, unlike flu vaccines, the COVID vaccines have not received full approval from the Food and Drug Administration. On Friday, a judge dismissed a lawsuit in Texas brought by hospital workers challenging their employer’s COVID-19 vaccine mandate. He rejected claims that the vaccines were dangerous because they were only approved for emergency use.

Smith said employers must also consider disproportionate vaccination rates among various groups and how those communities could be negatively impacted by vaccination mandates. She said disparities could result because of race, religion, disability, national origin and pregnancy.

“You want to proceed with incredibly cautious concern about employers recognizing that, in terms of people who have been vaccinated, there are disparities,” Smith said, “and employers have to make sure that those disparities aren’t going to surface in a given workplace.”

When mulling a vaccine mandate, employers should consider their industry, Smith said. She said businesses like long-term care facilities and hospitals that interact with high-risk patients might consider a mandate with proper exemptions to protect their patients. She suggested that other businesses might seek different avenues to encourage vaccination and combat misinformation before instituting a mandate.

“I would encourage employers to then really think about the various ways they might be able to encourage their workers to get vaccinated on a voluntary basis,” Smith said. “That might mean incentives (for) people who get vaccinated. Maybe that’s an extra day of vacation.”

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