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Managers will have to enforce rules for unvaccinated employees, and it won’t be easy

But given the precipitous rise in Covid cases thanks to the highly transmissible Delta variant, and lower-than-hoped-for US vaccination levels, employers may soon take a harder stance.

Shy of an all-or-nothing mandate, however, managers will be enforcing two different sets of policies at work: one for unvaccinated employees and another for those who are vaccinated.

Employees with medical or religious reasons for not getting vaccinated are protected under the law. And employers have to be concerned about workers who genuinely lack access to a vaccination site.

But for all other employees? “There is increasingly very little tolerance for those who choose not to be vaccinated,” said Johnny Taylor, president and CEO of the Society for Human Resource Management. “More and more employers are breaking toward the side of ‘I have to protect my employees and the workplace.'”

While CEOs are still reluctant to mandate vaccines and fire those who refuse to get the shot, they want to do as much as possible just short of that mandate, Taylor said.

Partly that’s because they don’t want to lose talent and they don’t want to get into the business of dealing with medical and religious exemptions.

Plus, for some, firing the unvaccinated isn’t realistic. Taylor spoke recently with a company where half the employees refuse to be vaccinated. “The owner said, ‘I can’t afford to lay off half my staff but I also can’t afford for half my staff to get the other half sick.'”

So one way employers are trying to the thread the needle is to impose greater restrictions on unvaccinated employees.

For instance, Taylor said, some are considering requiring unvaccinated employees to be tested twice a week at their own expense and wear an N95 mask at work at all times.

That’s the kind of rule that managers would need to enforce just as they would any other type of hard-hat safety rule.

That may feel odd for those managing in offices, since playing safety monitor is typically not part of their job. But they’ll have to adapt, fast.

“These are safety rules. We have to get over that discomfort and say, ‘We have this rule for a reason. It’s not your decision,'” said attorney Devjani Mishra, who is a leader of the Vaccination Working Group at employment law firm Littler Mendelson.

And there should be consequences if an unvaccinated person doesn’t abide by the rules.

For instance, at Emerald Packaging, a California-based produce packaging manufacturer, CEO Kevin Kelly decided to ask for proof of vaccination from his employees and said that all unvaccinated employees must be masked at all times. If they violate the rule once, they get a warning. If they do it twice, they’re fired. Kelly said that his unvaccinated employees have complied with that rule to date.

He also said he would love to just impose a vaccine mandate. But he doesn’t feel comfortable doing so until a mandate is required by state or federal regulators or at least until some of the biggest, best known US companies impose a strict mandate themselves.

Managing interoffice conflicts

The issue of how best to handle unvaccinated employees isn’t just a concern for employers, but also for their vaccinated workers. And those concerns will be front and center for managers as well.

One temptation for companies may be to allow unvaccinated employees to work from home more often if their job allows. But that won’t go over well with vaccinated colleagues who would like to do the same.

Federal law doesn't prohibit Covid-19 vaccine requirements, Justice Department says

“The optics will be, ‘People are getting a benefit by not being vaccinated. Why am I being penalized for getting vaccinated?'” said attorney Michael Schmidt, vice chair of Cozen O’Connor’s Labor & Employment Department.

Or consider parents with young, unvaccinated children at home who may not feel safe coming to work if many of their colleagues are unvaccinated.

Lastly, managers shouldn’t discount the possibility of verbal fights breaking out between those who are vaccinated and those who are not.

While companies may inquire about vaccination status and ask the unvaccinated if they plan to get the shot, they are usually advised against asking employees why they’re not getting vaccinated because that can raise a host of legal issues, Schmidt said. But don’t expect the rank and file to worry about that in their personal exchanges, since emotions are running high these days.

“We’re now getting a divide in employee groups. People are yelling at each other,” Taylor said.

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