The highly contagious Delta variant of COVID-19 is causing an increase in the number of employers who are either implementing or considering a COVID-19 vaccine mandate for everyone in their workplace. Further, multiple states have already implemented mandatory vaccines for particular industries, and President Biden recently announced vaccine mandates for federal employees, federal contractors, and all employers in United States who have 100 or more employees.
As of mid-September 2021, the Delta variant accounts for over 99 percent of new COVID-19 cases nationwide, according to Centers for Disease Control and Prevention (CDC). The Delta variant is more than two times as contagious as previous variants, and some data suggests that the Delta variant might cause more severe illness than previous variants in unvaccinated people.
Low vaccination rates in many states are driving the current rapid surge in COVID-19 cases, have overwhelmed hospitals, and also increase the chances that more deadly and vaccine-resistant variants will emerge.
Vaccinations remain the most effective tool against fighting COVID-19 and will reduce the likelihood of mutation of other more transmissible and vaccine resistant strains, such as the Mu variant. To that end, vaccines are playing a crucial role in limiting the spread of the virus and minimizing severe adverse outcomes.
As more companies are realizing the importance of the COVID-19 vaccine as the number one tool to fight the pandemic, and following the FDA's approval of the Pfizer-BioNTech vaccine ("Comirnaty"), we are seeing increased momentum of employers mandating vaccinations for employees while engaging in the accommodation process for employees who cannot receive the vaccine due to a medical reason or a sincerely held religious belief.
So, what does this mean for your family business?
What happens if you have employees who are vaccine hesitant, refuse to get the vaccine, or decline to share their vaccination status with you? What if clients and/or customers inquire about your employees' vaccine status or require engagement with only fully vaccinated individuals? How can family businesses manage disputes regarding the vaccine?
If there is a disagreement between you, as a family business owner, and others in the business regarding the issue of vaccination, there are a few methods for managing this conflict.
The first method is negotiation. It is important to listen to and hear employee concerns and explore ways to help them shift views on getting the vaccine. For example, if they are worried about having an adverse reaction after the vaccine, you can offer an extra paid day or additional time off for them to recover.
It may be trickier when a family member or other employee is opposed to getting the vaccine (based primarily on misinformation circulating on the internet) or having it become a mandate. One solution is to put out a statement acknowledging the opinions of those people who are hesitant and consider providing educational resources to provide them with accurate information regarding the vaccine.
Maneuvering through the negotiation process could include an interest-based dispute resolution technique called "consensus building," which puts responsibility for moving forward on those in the minority position. Essentially, those with dissenting opinions would be asked to articulate how the opinions of the majority would need to be altered in order to be accepted.
As the process goes on, the group continues to make changes until everyone can agree on the solution. As much of a time-intensive process this can be, it leaves everyone feeling heard and fairly treated, which will help the family business in the long run.
The second method is education. To assist family business decision makers in reaching the best solution for everyone, it might be helpful to bring in outside parties for further education.
Utilizing an expert to do research and help weigh the options for everyone in the business can ensure that all sides of the argument will be heard. You can also provide information already available; in June 2021, DWT presented a free webinar titled COVID-19 Vaccine Facts and Myths: Details from the Doctors.
Use of PowerThe third and final method is use of power. If it was not possible to reach a solution through negotiation and education, it is time to force the decision in one way or the other.
At this point, the decision makers in your family business must reach their decision and inform the rest of the employees and family members. This may cause more conflict in the family, but at the end of the day everyone must follow and respect that decision if they want to stay in the family business.
With the overwhelming spread of the Delta variant and the risk that other more transmissible and more vaccine-resistant strains will emerge, certain states, the federal government, and private employers are implementing vaccine mandates to protect as many people as possible in their business and in the community. Determining whether a vaccine mandate is the right call for your family business requires careful consideration of all the options and prioritizing the health of everyone involved.
Additionally, if your family business employs 100 or more employees or is a federal contractor, you should prepare for the implementation of a vaccine mandate (or weekly testing as an alternative for private employers) through the federal government's requirements.
At Davis Wright Tremaine, we are closely tracking ongoing vaccine mandates and updates in the law. Resources are available on our COVID-19 page; to view our complimentary September 20, 2021 webinar on vaccine mandates, you can do so here.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.