Should Companies Require Employees to Take the Vaccine?

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Some weeks, it will come in the form of an essay or column; others it might be an investigation, a Q. and A. with a notable newsmaker or a playful piece that provides a laugh. We’ll be experimenting, and we’d love your feedback about what you’d like to read on the weekend, when we all hopefully have a bit more time to think about what’s happening around us.

To kick things off, I’ve written a column about a debate that is about to rip through boardrooms: Should companies require that employees and customers get a coronavirus vaccine?

Calling the shots
Depending on the poll you read, 40 to 50 percent of Americans say they will not get a coronavirus vaccine when it first becomes available to them. In a survey of firefighters in New York City, who are essential workers at high risk of infection, 55 percent said they do not intend to take a vaccine if offered by their departments.

The possibility that large swaths of the population may refuse — or simply delay — getting vaccinated presents a perilous challenge to the health of the nation and the economy. Widespread coronavirus vaccinations are not only the best way to keep people from dying, they will also help revive business and the economy.

There is a way to get greater compliance: Businesses, which have spent the past several years championing their social responsibility, can require vaccination of employees and, in many cases, customers.

Dr. Anthony Fauci, the nation’s top infectious disease expert, told me that until 75 percent of people are vaccinated, we should all continue to wear masks and maintain social distancing, even if we’ve been vaccinated. That means movie theaters, indoor dining, sporting events and travel would remain challenged.

In other words, unless three quarters of the nation is vaccinated, the engine of the economy will not jump start the way so many are hoping. The debates about health restrictions and economic stimulus plans would continue.

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If individuals are left to make the vaccine decision by themselves, a 75 percent compliance rate may be unattainable.

That’s why business leaders are so uniquely positioned: They can tell employees that they may only return to the workplace if they get vaccinated.

This could be made compulsory for workers everywhere, from factories to offices and beyond. Mandating vaccines would be especially important to help protect workers in minority and lower socioeconomic communities that have been hardest hit in the pandemic. According to a Pew Research poll, only 42 percent of Black Americans intend to get vaccinated.

Beyond social welfare, there’s a persuasive argument that a vaccination mandate could be considered a workplace benefit: If employees knew that everyone around them is vaccinated, they would feel more comfortable working there.

And it could create a compelling competitive advantage. A service like Uber, for example, would be more attractive to customers if the company said that all of its drivers were vaccinated. The same could be said for Walmart, Starbucks or any other store or restaurant.

Some companies could even require their customers to be vaccinated, which would have a bigger impact on the compliance rate and show genuine leadership. If, for example, an airline said that only passengers who were vaccinated could fly on its planes, it would instantly create the “safest” airline to fly. And it would make employees who interact with customers feel safer, too.

Can a company do that? The answer is: Yes.

The law establishes that both the public and private sector can require vaccinations. The New York State Bar Association, in fact, recently recommended that the state consider making vaccinations mandatory. Public and private schools require all sorts of vaccinations for students. Many hospitals require vaccinations of its employees. The list goes on. (Medical or religious exemptions exist, and should be allowed in the case of a coronavirus vaccine as well.)

In 1905, the Supreme Court ruled against a pastor, Henning Jacobson, who had sued the state of Massachusetts for requiring residents to take a vaccine after an outbreak of smallpox. “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others,” the court ruled. “It is, then, liberty regulated by law.”

That ruling, and others after, it have repeatedly reaffirmed this principle. As for private businesses, they can choose to hire, fire and transact with anyone, unless they discriminate based on a protected category.

There is still room for interpretation. Lawyers could argue that prior cases didn’t consider a drug authorized only for emergency use by the F.D.A., as the early coronavirus vaccines will be. Or perhaps a more conservative-leaning Supreme Court would be open to revisiting prior precedent.

Over the past week, I spoke with executives at companies in various industries to see whether they intend to require vaccination of employees or customers. None wanted to speak on the record.

Almost all said they planned to recommend the vaccine, but not make it compulsory. Several said that they have tried to create a culture of trust, and a vaccine mandate would undermine that trust. Others worried about legal liability if an employee had adverse side effects from the vaccine. Some said they would like to mandate the vaccine, but worried that a backlash could spiral into a public-relations nightmare.

This is not a hypothetical thought experiment. When the chief executive of Qantas, the Australian airline, said he would require passengers to be vaccinated — “certainly for international visitors coming out and people leaving the country, we think that’s a necessity,” he said — the backlash was swift. A travel agency in Britain stopped booking flights with the airline, stating that “we feel that bodily autonomy with regard to medical intervention is a personal choice and not something to be forced onto people by businesses.”

It is understandable that executives would be anxious about courting potential controversy, but leadership is about making difficult decisions when the stakes are high. Simply recommending that people take the vaccine may not be enough.

It seems inconsistent for companies to lobby Congress to provide rescue funds and liability protection against Covid-19 lawsuits and not at the same time robustly support vaccine mandates.

For all the companies preaching social responsibility — some are spending billions of dollars to help prevent climate change, for example, to avoid death and destruction in the years to come — the immediate human tragedy of the pandemic, in which more than a million people have died, is a powerful argument for action.

Indeed, the most meaningful approach could be for groups like the Business Roundtable, which represents the biggest companies in the nation with some 15 million employees, to get its members to sign a joint commitment to mandating vaccinations, which would help prevent a backlash against individual companies.

In truth, companies may not have to publicly declare their plans just yet. After all, most people won’t have access to the vaccine for several months. But once one or more vaccines are available — hopefully, after demonstrating their safe use on tens of millions of people — it would be a disservice for the business community not to to use its enormous power and influence to protect the health of workers, customers and society.