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As More People Return To In-Person Work, Employers Weigh Whether To Mandate Vaccines

ARI SHAPIRO, HOST:

I'm Ari Shapiro in Washington, where two weeks from now, all remaining restrictions on how many people can pack into businesses will end. Around the country, businesses and state and local governments are dropping pandemic rules. More people will be heading back to in-person work soon, and so many employers are looking at whether they can require workers to get the vaccine. Johnny Taylor Jr. is president and CEO of the Society for Human Resource Management. Welcome back to ALL THINGS CONSIDERED.

JOHNNY TAYLOR JR: Glad to be here, Ari. How are you?

SHAPIRO: All right. Let me just start by asking how much of your attention has been taken up by this one question of whether employers can legally require workers to get vaccinated.

TAYLOR: It's literally more than half my time. Employers are from different industries, different geographic regions of the country. Everyone's asking that question. And the question is really two questions - can I, and should I? Those are sometimes two different answers.

SHAPIRO: Well, let's start with the can-I question. I know there are a lot of opinions. Is there a simple yes/no answer to whether this is legal or not?

TAYLOR: Yes. And the answer is yes. The EEOC has said without a question that you can mandate it. There are caveats, the two being if in fact someone has a religious objection to it, they can ask for reasonable accommodation. And if someone has a serious health condition under a disability of sorts, that Title VII says you can't discriminate against people who can't take it. But other than that, absolutely, you can mandate it.

SHAPIRO: Now, you say that this is clearly legal with those carve outs, but already there are at least a couple of lawsuits arguing that employers cannot mandate this. There's one from a New Mexico corrections officer, another from teachers in Los Angeles. Do you expect to see more?

TAYLOR: We do. And listen. I'm a lawyer by training, right? And so nothing stops anyone from bringing a lawsuit. But the government's guidance has been clear. We had a national, you know, unlike anything, global health crisis. And this was the response, that if safety is priority, workplace safety is priority, and we have a way to improve and enhance workplace workplace safety, which includes asking people to be meant to be vaccinated, then the courts have said that's reasonable.

SHAPIRO: Now, you say there are two questions - can they and should they? The can-they question might be straightforward. The should-they question sounds a little more complicated. What are you advising people?

TAYLOR: So we're saying it depends on your culture, Ari. Like, at the end of the day, some organizations - and most, by the way, don't - most people don't want to mandate, especially to Americans, anything. And so we went for a long time with strongly encourage. Right now, however, with more than 50% of the American population being - adult population being vaccinated and we have not had in any significant numbers people die or become seriously ill, more and more employers are saying, you know what? Mandate is what we're going to do. We first tried to strongly encourage you. We motivated you. We enticed you with - employers were paying people to do it. But now, it's time for us to get back to work. And we have to provide as safe of a workplace as we can. So you must do it. Delta Airlines just did it, for example.

SHAPIRO: Now, Delta's a huge company. When we spoke to you last in December, as the first vaccines were being authorized, you predicted that many small companies would require vaccines because when they're just a few employees, somebody calling out sick could be a very big deal. Have you seen that play out?

TAYLOR: Well, there's no question. The small and medium-sized companies are all over this, right? They're like, listen. One single point of failure, one employee gets sick, gets a customer sick, we hit the headlines, our business is in trouble. So small and medium-sized businesses are clearly going toward the mandate. I was surprised to see the tide turn.

You're right. When we spoke earlier in the year, big companies like United were considering it but didn't - United Airlines, that is. But then all of a sudden, Delta's came out and now consistently we're seeing the drumbeat of companies saying, yes, we're going to mandate it. Now, interestingly, Delta said our current employees we're not going to mandate, we're going to strongly encourage. All new employees, you must be vaccinated to work here.

SHAPIRO: So you're saying the tide is moving in the direction of requiring vaccinations. What do the companies that are not requiring it have in common? What's the reason they give for that?

TAYLOR: You know, it's their culture. People are pushing back. Again, it's that American thing. We don't like to be told to do anything. We don't mind complying. We don't even mind you strongly encouraging. But when you tell me I have to do it, I immediately don't want to do it just for general, like, (unintelligible). And so that's what they're seeing. And they're trying to go with - [inaudible] if everything works, we want people to do this on their own.

SHAPIRO: That is Johnny Taylor Jr., president and CEO of the Society for Human Resource Management. Great to talk to you again. Thanks a lot.

TAYLOR: Great talking with you. Be well. Transcript provided by NPR, Copyright NPR.