US employment attorney Scott Cruz’s phone has been ringing repeatedly in recent weeks as clients scramble to make policies that mandate “vaccination or testing” for all workers.
He has made very different calls since Thursday, when the Supreme Court blocking President Joe Biden’s federal mission and handing control back to companies and states to decide their own Covid-19 vaccination regimens.
According to Cruz, who works for the law firm Greensfelder in Chicago, small and medium-sized firms are “breathing a sigh of relief.” While the mission is a “great source of work” for those in his profession, “for the client, it is an administrative and logistical nightmare. . . not many of them are happy about that.”
The change is the latest setback for global companies grappling with their approach to worker vaccination. With a tangle of labor laws being regulated in each of the countries in which they operate, and facing varying levels of government willing to legislate, the result is a patchwork of policies and a potential mountain of litigation.
Even before Biden made his request, American companies’ stance on employee vaccines was among the toughest in the world.
United Airlines last year laid off nearly 200 employees who failed to provide proof of vaccinations or waivers. The company told the Financial Times on Thursday it would not change its policy, which was in place before Biden’s move.
In a memo sent to employees this week, seen by the Financial Times, chief executive Scott Kirby said there are “approximately 8-10 United employees alive today because of our vaccine request.” Before the policy was introduced, an average of one employee per week would die from Covid-19, he added. A judge sided with United in November when six employees sought to thwart the airline’s policy.
Citigroup has also asked workers to be vaccinated by January 14 or face the sack. In an update on Thursday by its head Regarding HR, the bank said 99% of its workers were vaccinated or exempted for approved reasons.
U.S. labor laws give employers full discretion over their vaccine policies.
“The US is the only country in the world where there is a concept of self-employment,” said Devjani Mishra, a partner at the New York-based law firm Littler. “Most workers don’t have an employment contract or the right to work for a specific period of time – unlike most of Europe, where you have contractual protections. . so in general, US companies have more time to claim vaccines as a condition of employment. ”
However, different state and local rules complicate matters further. New York City requires all on-site workers to be vaccinated, while such a regulation is prohibited in Florida if an employer fails to provide certain exemptions – with the exception of healthcare workers, who the Supreme Court has ruled must be vaccinated.
In the UK, the threat of discriminatory claims has largely prevented companies from demanding vaccinations, but lawyers say the ‘mood’ has changed as a result of the new law mandating home care workers and frontline medical and social care workers must be stabbed in.
Stuart Proctor, chief executive of hotel group Stafford Collection, is encouraging staff to get vaccinated but can’t force it © Andrew Porter
Stuart Procter, chief executive of the Stafford Collection hotel group, is strongly encouraging staff to be stabbed but is too wary of the risk of being sued to take action against those who refuse.
“We had a case where a young anti-vaxxer was infected with Covid-19 and the entire concierge and porters had to self-isolate,” he said. “It was especially frustrating, because the team that was wiped out had all been vaccinated. But legally you can’t force it.”
Companies in the UK have already begun eliminating benefits for unvaccinated workers. Retailers Next and Ikea are only offering statutory sick pay, rather than enhanced corporate pay, to unvaccinated employees who need to self-isolate. Other companies, including law firm Debevoise & Plimpton, have banned workers from entering offices without proof of vaccinations.
Richard Fox, partner at law firm Kingsley Napley, said: “Next’s move to make this move could indicate a changing mood among employers on the issue of vaccinations. “While employers adopt a policy of ‘no work, no work’ or ‘no pay, little sick pay’ which could be seen as extreme or the exception to date, we are seeing employers becoming increasingly encouraged.”
In the US, companies including the Vanguard fund manager have sought to incentivize workers with financial incentives. Vanguard is offering unvaccinated employees a $1,000 bonus for being stabbed. Retailers Kroger and Bolthouse Farms have offered similar payouts.
In countries like France and Italy, the government’s tough stance has led to recruitment requests from unvaccinated public health workers, employment lawyers said.
According to Anne-Laure Périès, partner of Capstan Avocats, workers have argued in industrial courts and in administrative courts that mandatory vaccination is an attack on physical integrity or treatment. inhumane, and being fired for refusing is discriminatory. Most of the workers’ requests were denied, she said, but not all.
Italy also set out in February to make it mandatory for people over 50 in the workplace to get vaccinated or face unpaid suspension.
Lawyers in the UK have yet to consider vaccination-related lawsuits. But they are expecting them and say the cases are likely to depend on whether a worker can declare hesitancy qualifies as a religious or philosophical belief worthy of legal protection. . However, they suggest that companies may be able to build successful defenses on the basis of health and safety.
Previous cases of unfair dismissal in the UK related to Covid have often not benefited workers. In recent months, employers have won lawsuits involving an employee fired for refusing to wear a mask and another for attending a party during the closure.
James Davies, employment partner at Lewis Silkin, says clients are looking to put policies in place globally to avoid confusion and that while “virtually no one” is looking for mandatory vaccinations for all employees, some “ask about it”.
Pilots Kyle and Stephanie Atteberry, are taking unpaid leave from United Airlines because they refused to get a COVID-19 vaccine © Paul Weaver / SOPA Images / LightRocket / Getty Images
Mishra said vaccination is an extremely expensive affair for US companies, which have to shoulder the cost of health insurance for their workers. With many clients setting the policy “on a country-by-country basis,” there’s also “participating gymnastics,” she added.
A lawyer based in the London office of a major US law firm asking for proof of vaccinations from US workers but not UK employees said he would not get the vaccine even when that means being barred from the office.
“I’m not vaccinated and nothing could make me touch it,” he said. “In the US, our policy is that you must be stabbed in the office. I think it’s a dangerous act for companies to mandate it. ”
Additional reporting by Jyoti Mann and Delphine Strauss