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The Shift: Vaccine Mandates? Hybrid Work Options? Companies Look to GCs for Guidance

The role of the in-house department leader has shifted—once again—to lead the efforts to stabilize their company’s work environment with regards to vaccine policies, hybrid work issues and data concerns.

Even before the vaccine was available, the legal department played a major role in COVID-related policy and regulatory talks, including the discussion around the legality of vaccine mandates.

But the general thrust of the conversation has recently changed. The onset of the Delta variant is not only altering office return policies, it is also changing the chief legal officer role—again.

Part of the reason is that chief legal officers are often looked to as the ethical point person and “moral compass” of the company (although many of those same CLOs are quick to point out that it takes a C-suite village to create a truly ethical corporate culture). Well, there isn’t a better storm to put that to the test when you combine the decisions around the implementation of vaccine policies, hybrid work, employee safety and health-related data protection.

The Conversation

“[The discussion has] now shifted from, ‘What are the interesting legal questions?’ to ‘What are the interesting moral, ethical and societal questions—and how do you balance those factors? We want to be asking, ‘What’s the right thing to do?,’” according to The Hershey Co. general counsel James Turoff.

Don Riddick, Atlanta-based chief legal officer of tech firm Featurespace, says that a “medical hat” has now been added to the GC’s growing hat collection.

“To a certain extent, general counsel must also now act as a chief medical officer in interpreting the guidance of various regulatory and advisory bodies, which definitely goes beyond our normal remit or training. As a result, plans for office returns are more conservative and reactive to guidance than in other areas of workforce legal guidance, particularly with the changing landscape of the virus and governmental requirements.”

In addition, a recent survey also shows that 75% of respondents indicate they will get push back from employees who are not in a protected class—those with religious or health exceptions—from the vaccine mandate. In addition, 64% of employers are concerned about the legal issues that come with enforcing the vaccination requirement.

“I am concerned that the legitimate exceptions will be abused,” Hartstein said.

The Significance

If a company decides to have a vaccine mandate, experts have been quick to point out the complexities around determining whether employees have to show proof of vaccination or be taken at their word that they’re vaccinated. If the company wants proof, how should it store, share and protect that personal information? Similar questions have emerged around info gathered from employees who are seeking vaccination-mandate exemptions.

In addition, employee walkouts over vaccine mandates are another concern that’s weighing heavily on GCs at companies in industries and regions that are already struggling with staff shortages.

“Some industries are having issues hiring people generally. Will they be even shorter staffed with a vaccine mandate? I view that as a real issue,” Hartstein said.

At the same time, some general counsel have switched their stance on whether employees need to be vaccinated before they walk through the door.

“Six months ago, I honestly thought we could get away without a mandatory vaccination at work. That was my strong belief. That’s why we didn’t push it at my workplace as a leadership team,” said a GC who was not authorized to speak on behalf of his company, a major global manufacturing corporation. “My guess is that by early 2022 you will see the majority of employers require people to be vaccinated when they’re back in the office.”

The Information

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The Forecast

So what are other companies doing? According to a report published by Littler Mendelson, 46% of employers polled in August said they are considering a vaccine mandate for employees.

The survey found that 21% of companies have plans to mandate COVID-19 vaccination, or have already done so. When the firm published a similar report in January, only 10% of companies said they planned to mandate vaccination.

The FDA’s approval of the Pfizer vaccine may be making more employees comfortable with getting the vaccine. While most companies are still encouraging employees to get the vaccine over mandating it, some companies, including Google, Facebook, United Airlines, and recently Goldman Sachs, have mandated vaccinations for returning employees.

“I think the delta variant has scared a lot of people. It is a new wrinkle that has been thrown in the process,” said Barry Hartstein, a shareholder at Littler Mendelson in Chicago who helped author the report. Masks are being mandated and employers are getting more comfortable with the idea of mandating a vaccine.”