The Vaccine Question

As the COVID-19 pandemic drags on and the debate over vaccinations continues to be politicized, organizations are going to be faced with a tough decision: do you, or do you not, require your staff to be vaccinated? It is a decision that can cut both ways; no matter what you decide, you run the risk of having people leave. If you don't mandate vaccines, some people may leave because they do not feel safe; if you do mandate vaccines, some people may leave because they feel attacked.

Nonprofit organizations are in a bit of a unique situation in regards to this vaccine decision. More so than private businesses, the community may look to nonprofit organizations and charities as example-setters for others. No matter which decision the organization makes, they are also making a statement to the broader public.

The science is fairly inarguable: vaccines work to prevent death and hospitalization. Even in the face of the more contagious Delta variant, some studies put the effectiveness of the Pfizer vaccine at 88% against symptomatic disease and 96% against hospitalization. (Studies out of the U.K. and Israel put the actual number up for a bit of a debate, with results from Israel pointing to a much lower efficacy at preventing infection, though the ability to prevent hospitalization and death remained high.) The Moderna vaccine is also similarly effective. Johnson & Johnson's vaccine was not quite as effective against the initial version of the virus, but the company reports only a slight drop in potency when faced with the Delta variant. While breakthrough cases can definitely occur, they are a small portion of total infections and the outcomes of those who do get infected are going to be more favorable than if those individuals weren't vaccinated.

What does your organization do with this information? The concept of individual choice gets difficult when those choices can negatively impact others. If part of your staff is vaccinated, extended interactions with people who are infected—who are statistically more likely to be unvaccinated—could increase the probability of a breakthrough case. Unvaccinated staff members put even their vaccinated coworkers at risk.

In late July, the Chronicle of Philanthropy ran the opinion piece "If You Want to Work for Our Nonprofit, You Need to Get Vaccinated." The leadership of an organization that offers healthcare, social services, and housing went through the decision-making process and determined that for them, requiring the vaccine was the right move. There were many facets to consider. Like many organizations, they were in a hybrid work structure; some people were able to work from home, while others were face to face with clients. Could they require just the client-facing individuals to get vaccinated? Was that equitable? As an organization that provided health services as part of their mission, what message would their decision send?

Ultimately, the organization decided to require vaccines as a condition of working with them (with reasonable accommodations allowed for individuals who could not get vaccinated for certain reasons). Out of hundreds of employees, nine of them ended up leaving.

If you do choose to go the route of mandating vaccines, you may face some blowback from your employees. Some may claim that it is a violation of HIPAA, the Health Insurance Portability and Accountability Act. (Not to be confused with HIPPA, which isn't a thing.) However, that law applies to sharing of your health information by healthcare and insurance providers, and not to employers.

(Please keep in mind that none of the suggestions in this article constitute legal advice. Before making any decisions that will affect your staff's employment status, we recommend consulting with a lawyer. While there is no federal law specifically addressing the vaccine issue, different states, and even municipalities, may have different laws pertaining to at-will work status. Some states are passing legislation outlawing "vaccine passports," though it's unclear at this point if such laws will stand up to judicial review.)

Recent guidance from the U.S. Equal Employment Opportunity Commission states that employers do have a legal right to require vaccinations. Previously, the commission has allowed companies to require precautions such as the flu vaccine, with certain exemptions. So they aren't creating completely new guidance in relation to COVID-19.

Still, the threat of potential lawsuits may discourage some organizations from enforcing vaccines. Johnny Taylor, Jr., president and CEO of the Society for Human Resource Management, told NPR's All Things Considered, "Nothing stops anyone from bringing a lawsuit." However, he also stated that courts thus far have generally sided with employers on the basis that these mandates are reasonable during such a health crisis.

There are a few alternatives to mandating vaccines. Some employers are creating incentives for getting vaccines, such as a gift card or other perks. Many organizations are allowing extra time off to allow employees to get and recover from vaccination. Some organizations are extending their work-from-home policies, or creating hybrid experiences that limit the number of people in the office at any given time. Other organizations have implemented rigorous testing requirements for unvaccinated employees.

Location will be part of your calculus as well. Your decision making might be different if you are in Vermont, where 67% of the population is fully vaccinated, vs. Mississippi or Alabama, both at 34%. In states with lower vaccination levels, your organization might face more resistance to a vaccine requirement. Conversely, your organization could be a more visible example of positive health behaviors if you pursue such a requirement in a modestly vaccinated state.

Unfortunately, there is no easy answer to the vaccine question. Your decision could affect both lives and livelihoods. You will need to balance the desires and needs of your organization, its employees, and your community, and no answer will receive 100% approval. Good luck, and stay safe out there.