Some U.S. employers are imposing a “soft” vaccine requirement for Covid-19. They allow employees who refuse refuse vaccine to opt for regular testing, working from home, etc. Is this type of requirement ethical?
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Ethical Decisions 
The answer is yes.
I argued in a recent post that an outright vaccine requirement — get vaccinated or be fired — is ethically problematic for most employers. This is because it violates an implied agreement (ethically speaking, not legally): when one takes a job., there is an understanding that the employee will be asked only to meet requirements that one can reasonably expect might come with the job. An invasive medical procedure like vaccination is rarely, if ever, a condition for most jobs.
Yet what do we do when so many people unethically refuse the shots? Especially when these wonderful vaccines can get us beyond a horrible and seemingly endless pandemic? There are several ethical options, and a “soft” vaccine requirement is one of them.
An option of regular testing, in place of a vaccine, is no breach of an implied agreement. A wide range of employers have long required medical exams, drug tests, and the like as a condition for continued employment. Similarly for masks and other mitigation measures. A work-at-home requirement is perfectly ethical, since employers have long made it a practice to change the workplace location as business dictates.
Employers who fear backlash from even a soft vaccine requirement have options as well. They can offer inducements such as a bonus or perks. Walmart is offering $150; how about $500? Even 80-90% compliance would get us where we want to go. The bonus should be immediate and preferably cash, not something added to the paycheck 6 weeks later. It should be discreet, since some employees fear censure from family and friends.
In the meantime, an outright vaccine requirement is ethical in many circumstances: when the employees work in a sensitive environment where vaccines are sometimes expected, such as a hospital or nursing home, or when they come into close contact with the public; when the company is hiring new employees (who know what they are getting into before taking the job); or when students return to school or university (where age-appropriate vaccines have long been required).
Employers and school officials have a clear utilitarian obligation to take action — now. They have many options and should select the most effective one that clears the ethical hurdles.
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My opinion piece on vaccine mandates recently appeared in The Hill. It maintained that while mandates are ethically questionable for most employers, incentives and “soft” mandates (get the vaccine or submit to regular testing, masks and distancing) provide an ethical alternative that may be just as effective.
I looked at a few of the online comments in search of arguments against my position. Nearly all of the comments consisted of ad hominems and misrepresentations of what I said, which are all too common in such forums. However, one comment raised an interesting argument. While there may be an implied agreement that employee duties will be within the range of what can be expected for the job, there is also an understanding that an employee cannot be allowed to pose a safety risk to others. This, too, is part of the agreement.
I concur that an employee who poses a significant health or safety hazard should expect restrictions and perhaps even dismissal. Certainly, anyone who tests positive for Covid or has been recently exposed to the virus should be quarantined. The question here is whether an individual employee poses a significant risk solely by refusing the vaccine. It is not enough to show that unvaccinated employees as a group impose a risk, because we are asking about the terms of an individual’s employment agreement.
Let’s suppose that community spread of Covid is so high than a single unvaccinated individual who submits to regular testing, masks, and distancing nonetheless poses a significant risk. We must test for antibodies as well as the virus, since an individual who has recovered from Covid is probably not a health hazard. If the employee shows no antibodies and refuses a vaccine, then he/she might justifiably be dismissed. I have not seen any evidence that we have reached this state of affairs, but we should be alert to the possibility. In the meantime, the contractual objection to a strict vaccine mandate stands.
There is, of course, the possibility that soft mandates and incentives won’t encourage workers to get the shots. Such a development doesn’t by itself overcome the contractual objection, but the objection collapses if the government steps in to require vaccines for the type of job in question. Employees can always expect that companies will obey the law, even if it results in their dismissal.
Nor does the contractual argument apply to new employees, of course, since they know what they are getting into before taking the job. They can boost the vaccination rate in a work force with high turnover. In addition, unvaccinated employees working at home can be required to continue doing so, since this falls under the category of distancing. Finally, jobs in which vaccine requirements are historical practice are exempt from the contractual argument. The US military, for example, is about to require Covid vaccines, which is perfectly ethical because military personnel have long been given a battery of shots.
None of this discussion is meant to give a pass to employees who refuse the vaccine. Absent some rare medical conditions, they have a clear obligation to get the shots. If they did, we wouldn’t be worrying about vaccine mandates.
Incidentally, my university has imposed precisely the kind of soft mandate I defend for most employers—while imposing a strict mandate for students, which I also advocate. It is not often that faculty agree so completely with university administration…
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