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WKYT Investigates | Vaccine policies

Businesses are walking a tight-rope between privacy and protection.
Published: Apr. 15, 2021 at 3:44 PM EDT
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LEXINGTON, Ky. (WKYT) - More coronavirus-related restrictions are being lifted as more people across the commonwealth and country continue to get vaccinated.

As a result, many business owners and human resources departments, too, are adjusting policies - some of which have been in place since the start of the pandemic.

It can be a tricky transition, though, as society tries to move forward into a more normal footing. And it leaves many business owners trying to walk a tight-rope between privacy and protection.

As a human resources expert, Brian Simmons is busy these days helping businesses re-imagine refilling mostly empty offices.

“I’ve started back with clients as early as four months ago, really trying to structure and put together plans on transitioning back to the workplace,” said Simmons, a Society for Human Resource Management-accredited senior certified professional and CEO/President of Best Edutainment. “For some employees, it’s like going back to a job for the first time!”

And even though some employees may continue working from home - “There will be employees who say, ‘I perform better from home or remote location than I do here!’” Simmons said - at this point in the pandemic nearly all employers are having to formulate some sort of policy for dealing with those who are vaccinated and those who are not.

“Now you’ve got two separate groups in the workplace, creating a situation - because there’s a difference - where there can be some discrimination if we’re not careful,” Simmons said.

A U.S. Census Bureau Small Business Pulse survey last month found that 78 percent of small businesses across the country are not requiring workers to be vaccinated before they physically come to work. Unsurprisingly, health care was the largest sector requiring a vaccine.

From a legal perspective, attorneys say it is a balancing act.

“At some points you’re kind of walking a tightrope,” said Tricia Shackelford, an attorney with Williams Kilpatrick, PLLC. “Employers are looking to balance the interest of having a vibrant, successful, robust business and being mindful of the individual rights of their employees.”

And while experts say companies generally can require a vaccine, they still have to allow for accommodations like disabilities, medical conditions or religious beliefs.

Polls show that Americans, by and large, want some restrictions in the workplace. In one Reuters/Ipsos poll:

  • 72 percent said it is important to know if the people around you have been vaccinated.
  • 60 percent said they want an employer who requires workers to get a vaccine before returning to the office.
  • 56 percent thought unvaccinated workers should stay home.

“Mandating the vaccine at this point is very difficult because all these vaccines are approved under an emergency use authorization, so there is potentially some exposure to the employer by mandating it,” said Dr. Ryan Stanton, an emergency physician. “Now, it should be strongly encouraged.”

Doctors and health leaders say, moving forward, there likely should and will be vaccine mandates in certain settings, such as health care, nursing homes and even on cruise ships. But one size does not necessarily fit every workplace. In many cases, Dr. Stanton said, mandates, which can often trigger a reaction of resistance, just may not the best way to handle it; instead, incentives should encourage vaccination.

“There’s going to have to be some carrot for those who choose to get the vaccine,” Dr. Stanton said, “and there needs to be some recourse for those who don’t who potentially bring COVID into the work environment.”

Doctors say steps like these are especially important now as we try to reach herd immunity.

“This is the time,” Dr. Stanton said. “The next few months will determine whether this is something we wrap up in 2021 or whether it’s something we’re going to see moving forward in the coming years.”

Either way, attorney Tricia Shackelford says the legal battles over this could last much longer.

“We aren’t out of the woods yet,” she said. “There’s a lot more back-and-forth and tug-and-pull to come.”

With masks and temperature checks so prevalent throughout the pandemic, many people have already gotten used to some measures that would have seemed odd before. But experts say showing proof of vaccination could require a new mindset. Shackelford expects some fights.

“There’s going to be a lot of tricky navigation,” she said, “between privacy rights and health information and requiring certain information to verify that people are not carriers or actively infected.”

According to new Harris poll data provided exclusively to CBS News:

  • 68 percent support requiring vaccine verification for flying on a plane.
  • 61 percent support it for attending sporting events.
  • 60 percent support it for attending concerts.
  • 60 percent support it for attending college.

Only 46 percent, the poll found, said that vaccine verification should be required to enter a store.

Those are the kinds of questions business owners and human resources departments are wrestling with - and likely will continue to, even after (or if) the office is full again.

“The transition is happening now, everyone is involved in adaptation to change now,” Simmons said, “and people are looking for answers now.”

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