By Sharona Hoffman
As state and federal public health authority erodes, employers may increasingly find themselves playing a central role in promoting public health. For example, during the COVID-19 pandemic, many employers either incentivized or required employees and customers to be vaccinated and/or masked even in the absence of federal and state mandates. In the future, they may frequently take the lead in implementing public health measures.
Longstanding Contributions to Public Health
In the United States, employers have traditionally shouldered significant responsibility for matters of health. In 2021, over 50% of Americans were covered by employer-provided health insurance. By contrast, in other countries, such as Canada and the United Kingdom, the government pays for all health care. In addition, over 80% of large employers (those with 200+ employees) have wellness programs that aim to help employees improve their health. While critics are skeptical about the efficacy of these programs, employers remain committed to these health-related initiatives.
Employers have the authority to establish rules for employees and customers. For example, employers may require workers to wear uniforms and to obey other grooming mandates relating to men’s hair length, piercings, and more. Many employers post signs stating “no shoes, no shirt, no service,” thereby instituting a loose dress code for those entering their establishments.
Employers routinely formulate policies meant to safeguard the health of employees and others in the workplace. They require those handling hazardous materials to wear personal protective equipment. Health care providers may require workers to obtain annual flu shots. Other employers go to great lengths to encourage (though not require) employees to get flu or other vaccines, such as by offering free vaccine clinics in the workplace or financial incentives.
Benefits for Employers
In most cases, workplace regulations are a logical substitute for federal and state public health policies when the latter are absent.
Admittedly, employers may not be motivated by altruism, but rather, by a desire to cut costs, but the outcome of health-related programs is nonetheless desirable. Many employers have offered to pay expenses for employees who must travel out-of-state for abortions. Paying for such travel is far less expensive than paying for pregnancy and delivery care and then for the dependent child’s health care needs, but the travel assistance also promotes women’s reproductive rights.
Note that in some states, employers are prohibited from establishing vaccine mandates. However, when permitted, employers are highly motivated to keep their workforces and customers healthy. Vaccinations can reduce absenteeism, enhance productivity, and improve morale. Preventing employees from becoming seriously ill can also reduce health insurance costs, a key concern for employers. In a pandemic, minimizing the likelihood of infection can prevent litigation by patrons who might claim they became ill after visiting an establishment.
Anti-Discrimination Mandates
In order to avoid violating federal and state anti-discrimination laws, employers must make exceptions for workers and customers who cannot comply with particular rules for medical and religious reasons. The Americans with Disabilities Act (ADA) prohibits disability-based discrimination and requires employers, public entities, and businesses to provide reasonable accommodations for individuals with disabilities unless doing so imposes an undue hardship on the party asked to provide an accommodation. Accommodations may include providing vaccine exemptions for employees or customers who cannot be vaccinated because of their medical conditions.
Title VII of the Civil Rights Act of 1964 prohibits religious-based workplace discrimination and requires reasonable accommodations of sincerely held religious beliefs. Employers, however, may ask employees for information about their beliefs if they are not familiar with them. Moreover, while Title VII includes a reasonable accommodation mandate, employers need not provide accommodations that will impose more than a de minimis (minimal) burden upon them. The accommodations requirement under Title VII is thus less demanding than that of the ADA, which does not have the de minimis burden limitation. To illustrate, an employer may not be required to provide religious exemptions for vaccine mandates during a pandemic for employees who work indoors, in close quarters if the disease at issue is highly contagious and potentially lethal. Title II of the Civil Rights Act extends the religious discrimination ban to businesses (called “places of public accommodation”) and thus protects customers.
Conclusion
Employers are likely to continue to offer wellness programs, require or incentivize vaccines, assist employees in obtaining reproductive care, and when appropriate, establish mandates for customers, such as mask and vaccine proof requirements. Because cost concerns and healthy workplaces often align for employers, workplace rules constitute a promising strategy for promoting public health.
Sharona Hoffman is the Edgar A. Hahn Professor of Law, Professor of Bioethics, and Co-Director of Law-Medicine Center, Case Western Reserve University School of Law.
