Get vaxxed or get out: Employee demand is spurring agency vaccine mandates

To mandate or not to mandate employee vaccination. That is the question PR firms both big and small are confronting as they reopen their offices to staff.

The world’s largest PR agency, Edelman, made its position known on the issue last week. As of December 8, vaccination against COVID-19 will be “a condition of employment” for all DJE Holdings firms, including Zeno Group and United Entertainment Group. The network will consider exceptions for staff with disabilities or sincerely held religious beliefs, or other factors as dictated by applicable law.

Agency holding companies Omnicom Group, the parent of Ketchum, FleishmanHillard and Porter Novelli, and Havas have also mandated vaccination for U.S. workforces returning to the office. Vivendi-owned Havas’ agency portfolio includes Havas Formula, Havas PR, Republica Havas and Abernathy MacGregor. Interpublic Group, parent of Weber Shandwick and Golin, is requiring employees to be vaccinated or provide a negative COVID-19 result from a test taken within 72 hours of being in the office.

Edelman cited a forthcoming federal rule in making its policy that likely was a factor in other companies’ vaccine mandates. The emergency temporary standard announced by President Joe Biden on September 8 stipulates that private companies with 100 or more staff must have every employee either fully vaccinated or submitting to a weekly COVID test. It would also apply to government contractors, regardless of staff headcount.   

The Office of Management and Budget is conducting a final review of the order, requiring employers with 100 or more employees to ensure their workers are fully vaccinated or undergo weekly testing, which was drafted by the Occupational Safety and Health Administration and submitted to the OMB on October 12. The rule, which would likely include a grace period for compliance, could be enacted within weeks. 

The federal order has been characterized as a vaccine mandate, with some assuming the weekly testing option would apply only to workers seeking exemptions based on medical or religious reasons. But that’s not the case, says Michael Lasky, partner at Davis & Gilbert and chair of the law firm’s public relations law practice group and co-chair of its litigation practice group.

“It isn’t actually a mandatory vaccination rule, because for those who don’t want to get vaccinated, for whatever reason, they can submit to the weekly testing,” he explains. 

He adds that unvaccinated employees will likely foot the cost of testing, not employers.

“It could be that the employer says, ‘Each weekend, please go get tested, as testing is now widely available, and bring the negative result with you on Monday,’” Lasky explains. 

Therefore, firms like Edelman that have voluntarily adopted a must-be-vaccinated rule are well within their rights to do so, says Lasky. 

Other firms are taking the same approach, says PR Council president Kim Sample, who cites two reasons: first, agency leaders are worried about the bureaucratic headache of tracking and filing weekly test results. 

“At first, they were worried about the expense of testing, but most insurance plans would cover it,” she says. “The main concern has become about the hassle of weekly testing. They see it as being very complicated, and tricky.” 

The council’s membership of about 240 HR leaders have also voiced their concerns, as “the burden will fall to them in managing a system for tracking the vaccine records” that now includes booster shots, says Sample. Another layer would have to be added for weekly tests. 

Yet there’s a bigger reason for taking a hardline approach, according to industry insiders. Vaccinated staffers, who are the overwhelming majority of most firms’ workforces, are “letting it be known that they feel nervous about being around employees who are not vaccinated,” says Sample. 

“I’ve heard from a lot of agencies, of all sizes, who are prepared to make tough decisions because they want to do what is right for the whole,” she says. These could include the termination of employees who refuse to be vaccinated without making a valid case for exemption. To legally do so, agencies would need to implement their own vaccination mandate.

“These agencies are not messing around,” regardless of whether employee staff count or federal contractor status makes them subject to the White House’s executive order. 

“They are taking it upon themselves, going ahead and stipulating all their employees be vaccinated,” she says. 

Clyde Group is one of those agencies. “Even before the administration’s announcement, we viewed firm-wide vaccination as an integral part of our office-reopening plan,” says Alexander Slater, founding partner at the Washington, DC-based firm. 

He explains that the agency’s leadership took its cues from the employees themselves.

“We were excited when our team members voiced their support for a policy that required vaccinations for everyone before they would be allowed to return to the office,” says Slater, adding that the policy included a grace period to accommodate those who needed more time.

“That approach was an overwhelming success,” he says. Clyde’s vaccination policy was also sensitive to team members who might have a medical issue, disability or religious belief preventing them from getting the shot. 

“One of the biggest challenges we faced was the evolving and uncertain guidance that various governmental agencies have issued to date. Sitting here today, we're still awaiting the Biden administration's final rules for government contractors, which will potentially impact firms like ours,” says Slater. “But I'm still optimistic that the approach we've taken will be supported by the administration’s pending guidance.” 

David Fisher, counsel in the labor and employment practice group at Davis & Gilbert, says he has seen the pendulum swing from clients once most concerned about freedom of choice to doing what will make the majority feel most at ease for a workplace return. 

“We are definitely seeing more and more the issue of employees not wanting to come back into the office if they are not assured everyone is vaccinated,” he says. He notes these employees may have children at home under 12 who can’t get vaccinated or are living with someone who is immunocompromised, and don’t want to become a breakthrough case that could infect them. 

“I think it is moving in the direction toward mandating vaccines in the office,” agrees Lasky, “because, frankly, that puts health and safety first and foremost.” 

“But it needs to be an objective policy and enforced fairly,” he stresses. If an individual is fired for refusing to get vaccinated due to, for instance, personal or political reasons, that same action also has to be the outcome for everyone who refuses on similar grounds. 

“If an employer is not even-handed in how it enforces the policy, like letting the rainmaker get away with it, the disparate treatment could unintentionally lead to a discrimination claim, like if they were fired for being over 50 [years of age] or African-American,” notes Lasky. 

The case against 

Not every agency or holding company is taking a hardline stance. WPP, for instance, is encouraging employees to get vaccinated, but not making it a requirement to work from its offices.

WPP’s PR firms include BCW, Hill+Knowlton Strategies and Ogilvy PR. 

“The extent to which a policy is permissive, even if the employer encourages them to get vaccinated, if he or she chooses not to, for whatever reason, you can’t take an adverse action against that employee,” says Davis & Gilbert’s Fisher.

Firms without a mandate that fall under the federal rule would have to allow an employee the option of a weekly test in lieu of vaccination. Some firms, particularly in states where overall vaccination rates are lower than in other parts of the country, are using a no-vaccination-required policy to attract and retain talent. 

“That has come up a couple of times recently, where agencies have been recruiting people wanting the freedom of not having to be vaccinated,” Fisher says, not identifying firms. “It can actually be a recruitment tool, especially if other agencies in their vicinity have moved in the opposite direction.”

“There is not necessarily a one-size-fits all answer as to whether or not to mandate from a business perspective,” he notes.