UPDATE 8/23/21 – A number of events have occurred in the past few days that strengthen our recommendation that nonprofits should mandate vaccines for their employees, subject to bona fide religious and health exceptions. First, the FDA has approved the Pfizer vaccine for people 16 and older. Second, even “red states” are beginning to issue guidance that vaccine mandates are legal. Third, as I predicted in the original article, states are beginning to ask about the vaccination policies and status of those with whom they contract. All of our recommendations below stand.
ORIGINAL STORY – Vaccine mandates are an urgent topic. We do not provide legal advice, but we observe that it seems increasingly clear that employers can mandate COVID-19 vaccines. Notably, major law firms are routinely imposing strict vaccine-or-test protocols on their own lawyers and staff — even to the point of lock-outs. As a former partner at a major law firm, I know how argumentative and litigious lawyers can be. If firms are imposing these obligations on their own, that says something about their confidence in that approach. Many for-profit businesses are beginning to mandate vaccines, as is the federal government. In short, organizations imposing mandates are on the rise and appear to be on sound footing.
But should nonprofits impose mandates on their own employees? We believe that, as a matter of sound risk management, the answer is yes. Given the emerging data from the CDC, nonprofits should mandate vaccines for all personnel who come to the office or interact in person for work-related reasons while working from home. The mandate should be subject to bona fide religious or disability exemptions, but as to those workers, I advise mandating regular testing.
To keep this brief and actionable, here’s our reasoning.
- Nonprofits often work with vulnerable populations. You do not want to be a vector of disease for those you serve.
- Many nonprofits work with populations who are less likely to have been vaccinated. If that describes your nonprofit, your employees have a heightened threat of exposure to the virus. An outbreak among your employees could inhibit your ability to perform crucial functions, particularly given the lean staffing and lack of redundancy at so many nonprofits. Furthermore, while at this stage it might be hard to conceive of a worker making a successful legal claim against her nonprofit employer for exposure at work for anything besides workers’ compensation, I have no doubt such claims will come. When they do, you want to be able to say you took all reasonable steps to have prevented infection stemming from work.
- Nonprofits are historically leaders in socially responsible behavior. With COVID, nonprofits should be taking the public health threat seriously and setting an example.
- It would not surprise me if organizations (especially governments) begin asking about a nonprofit’s vaccine rates and policies during contract negotiations or even funding discussions. A government would not want to delegate services to an organization that might become a vector for disease. Funders, for their part, would not want to make funding choices that might be undermined because of failures of public health risk management at a nonprofit. You don’t want to have to answer “no” to the question of whether all of your employees are vaccinated or being tested. Nor do you want to have to scramble to be able to answer “yes.”
- I have heard some nonprofits (and other businesses) express concern that employees will quit if they are confronted with a mandate. That is no doubt a possibility, but I personally think the threat is largely hollow. Why? Because workers will realize that their next potential employer can ask about vaccine status during hiring and that they may be ineligible for unemployment benefits if they are fired for refusing to follow a company rule (in this case, the vaccine mandate).
If you choose to follow this course, do speak to a lawyer in your local jurisdiction to confirm that no quirks of state or local regulation would inhibit your ability to mandate or inform its ultimate form. As noted above, we are not providing legal advice here. Instead, our point is that from the perspective of sound risk management, a mandate is good business. We also believe that nonprofits should take this course as a matter of stewardship: you owe it to your beneficiaries, your employees, your stakeholders, and your community.
P.S. A version of this post originally appeared in BeST, our curated online group for nonprofit leaders. To find out more about BeST, including the benefits of office hours, webinars, and resources, click here.