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The Next Pandemic Battleground: Vaccine Mandates In The Workplace

Nadya Faulx

If a company does decide to mandate vaccines, an employee’s options — particularly if they’re an at-will employee without an employment contract — are likely limited.

As COVID-19 cases continue to rise and vaccination rates slow, the latest pandemic battleground is companies mandating vaccines for their employees.

Several large national companies, like Walmart, United Airlines and Google, have told employees they need to get vaccinated or risk losing their jobs.

So has Ascension Health Care, parent company of the Via Christi hospitals in Wichita. Employees there have until November to get the COVID-19 vaccine and their annual flu shot.

If a company does decide to mandate vaccines, an employee’s options — particularly if they’re an at-will employee without an employment contract — are likely limited.

“Your options are to get the vaccine and continue working, decline the vaccine and find other employment, or, if you have a disability or religious-based reason for not getting the vaccine, ask your employer for a reasonable accommodation from the mandatory vaccine mandate,” said Teresa Shulda, a partner at Foulston Siefkin and vice chair of the Wichita law firm's employment and labor group.

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Teresa Shulda is a partner at Foulston Siefkin who specializes in employment law.

Tyson Foods is among the companies requiring vaccines for employees. But the union representing 24,000 Tyson meatpacking workers said the mandate should have been discussed first.

Shulda said case law on how a mandate impacts union workers is uncertain.

But in a case where non-union employees at a Houston hospital sued earlier this spring over a vaccine mandate, the employer won.

“These mandates are being challenged in the court system throughout the country,” Shulda said, “but the only recent decision to address it was out of Texas and there the mandatory vaccine policy was upheld.”

Ascension’s vaccine mandate has had a ripple effect in the community: WSU Tech, for instance, is requiring its nursing students to be vaccinated because they train at Via Christi facilities.

Wichita State University and Newman University, which have nursing programs, have told their students they must meet the guidelines at any facility where they do clinical training.

Lynn Loveland is the dean of health sciences at WSU Tech. She said Ascension’s decision will likely lead other health care companies to do the same.

“It's easier for a large, multisystem-institution company to mandate something,” she said. “Then it makes it easier for the smaller businesses, individual practices, to follow suit.

“So I think it will … gradually pick up speed, but it just takes the first one or two to really start the ball rolling.”

But implementing a mandate can be a tricky decision for an employer.

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Keith Lawing is the head of the Workforce Alliance of South Central Kansas.

“You've got a decent number of the population who just doesn't want to get (the) vaccine right now,” said Keith Lawing, president and CEO of the Workforce Alliance of South Central Kansas. “And some of those people might have skills and talents that employers want to hire.

“But then they've got to look at the other folks in their organization – their customers, the people working for them – they’ve got to provide a safe working environment.

“So there really is a lot of concern right now about how you balance the need for a safe environment and not drive away qualified applicants for the job opening.”

Several states and major cities have announced vaccine requirements for their employees. So has the federal Department of Veterans Affairs and the military.

Lawing said private companies often take their cues from the public sector.

“I think they are the trendsetter when it comes to a lot of employment situations … so they are going to help drive the conversation,” Lawing said.

“When you see something that is going to start to work in a hiring process, or you see some clarity emerge in the hiring process, then you're going to have more and more employers kind of coming along with that and following those kinds of practices.”

In addition to the push to vaccinate public employees, the U.S. Food and Drug Administration is expected to lift the emergency use authorization tag on Covid-19 vaccines soon. The designation has caused some people to shy away from getting vaccinated.

Lawing said those factors could contribute to the growing momentum surrounding vaccine mandates.

“You're going to have to make a decision at some point as an employer: Are you going to allow your workers to not be vaccinated and just test them? Is that good enough?” Lawing said.

“And do your employees who've been vaccinated, is that acceptable to them, for their co-workers to not be required to be vaccinated? Those are issues that employers are really going to have to grapple with as this issue continues to mature over the next few weeks and months.”