In the United States, widespread vaccination once led to the lifting of lockdowns and mask mandates in some areas, and schools gradually reopened. Many employers also planned to have employees return to the office. However, as has happened multiple times during the COVID-19 pandemic, the tide is turning.

According to the U.S. Centers for Disease Control and Prevention (CDC), localized outbreaks have driven increases in cases, hospitalizations, and deaths across many states, primarily fueled by the Delta variant. The CDC website notes that areas with the most severe transmission and consequences are those with lower vaccination rates, and even vaccinated individuals may experience "breakthrough infections."

This reality is prompting employers to adjust their strategies, with a growing list of companies reassessing plans over the past three weeks. For example, retailer Target has reinstated mask requirements for employees and recommends that customers wear masks in areas with high transmission risk. Other companies, such as Tyson Foods and Microsoft, are venturing into territory few have previously explored: requiring vaccinations for on-site employees.

Lindsey Conrad Kennedy, a member of the law firm Eckert Seamans, said employers are struggling to keep up with the pace of current developments. "Many of us are now experiencing pandemic fatigue," she said. "Employers are frustrated in trying to keep their businesses compliant."

But regardless of the approach employers take and how they enforce policies, Conrad Kennedy and other legal sources emphasized the importance of consistency and transparency.

The Return of Mask Mandates

Masks are only part of the compliance equation. E. Pierce Blue, a senior attorney at Morgan Lewis, said in an email that many employers adopted the CDC's May guidance, which stated that fully vaccinated individuals could resume activities without masks.

However, as of July 27, the CDC's interim guidance for fully vaccinated individuals recommends that even fully vaccinated people wear masks in public indoor settings in areas with substantial or high transmission. According to CDC data, most U.S. counties currently fall into this category.

Blue said employers need to instead monitor transmission rates by county and reimpose requirements when necessary, or reimpose them nationwide.

Employers choosing the former approach should ensure updated policies are "clear, specific, and in writing," said Brooke Schneider, a senior associate at the law firm Withersworldwide, in an email. "This ensures everyone receives the information, the policy is implemented uniformly and without improper consideration, and allows employers to rely on or cite the policy if they encounter resistance."

Schneider said employers can communicate initial changes during meetings or in person, then follow up in writing. She continued that if employees show resistance, "it is important to reiterate that the employer has an obligation to protect the health and safety of all employees, and that the employer is making decisions based on medical guidance and in the best interest of all employees."

Conrad Kennedy similarly emphasized the importance of clear, early, and frequent communication of policies while ensuring consistency in enforcement. "Regardless of the situation, inconsistent enforcement or no enforcement at all is a recipe for disaster for employers," she said. She added that those responsible for enforcement must document violations and follow disciplinary procedures when appropriate.

The Rise of Vaccine Mandates

Blue said the trend of employers implementing vaccine mandates follows several major developments, including the Equal Employment Opportunity Commission's (EEOC) updated technical assistance in May. But Blue added that recent court rulings provide legal support, including one upholding a Texas hospital's mandate. In July, a federal judge also blocked a lawsuit challenging Indiana University's requirement that students be vaccinated before returning to campus in the fall, according to NPR.

"Many companies still prefer not to require vaccination unless it is necessary to resume operations and keep employees healthy," Blue said. "That said, some companies adopting mandatory vaccination policies makes it easier for other companies to take the same action."

Schneider said employers considering mandates need to consider factors affecting their specific workplaces.

For example, they may need to consider whether the workplace is a public area and whether employees can safely maintain social distancing. They may also need to consider whether there are employees particularly vulnerable to COVID-19 or severe symptoms, such as older employees or those with known health conditions.

Conrad Kennedy said unionized workers may be affected by employment agreements or collective bargaining agreements that could impact the situation.

"For high-profile companies, I do think actions by large employers influence smaller businesses and give them more confidence in implementing their own mandates," Schneider said. "However, some employers may want to see how these mandates affect employees at large companies before taking action."

Can Employees Who Are Not Vaccinated Be Fired?

Schneider continued that employers should also anticipate that vaccine mandates will cause some resistance and plan how to handle employees who refuse vaccination.

In cases where employees refuse to comply with mask mandates, Conrad Kennedy said termination can be considered; "if an employee refuses to comply with what is essentially a safety protocol, then termination is viable."

But she added that termination for refusing a mandatory vaccination policy "may be riskier," partly due to the sensitivity of the issue. The EEOC's technical assistance notes that federal civil rights laws require employers to provide reasonable accommodations for employees who are not vaccinated due to a disability or sincerely held religious beliefs, practices, or observances. Schneider said if employers encounter resistance to mandates, they should first engage in discussions to determine the employee's reasons.

When an employee's reason for not complying with vaccination requirements does not fall under the circumstances outlined by the EEOC, Conrad Kennedy said termination "may be on the table," just as in other cases where employees fail to comply with organizational policies. However, she noted, "it would be wise for employers to consider alternatives because legal uncertainty remains."

Both Conrad Kennedy and Schneider noted that termination could create staffing issues. Schneider said even if terminating employees who refuse vaccination is possible, employers need to ensure they have the necessary workforce and personnel.

"There are a large number of employees who may refuse vaccination without medical or religious reasons," Conrad Kennedy said. "Are you really going to fire them? Will you allow business operations to be disrupted?"

On the other hand, she noted that vaccination requirements might help retain employees who are concerned about returning to a workplace with unvaccinated individuals. Additionally, employers can consider alternatives to termination, such as placing employees on leave; "it's a disciplinary action, but that's what I see employers doing," Conrad Kennedy said.

But Schneider said, similar to mask requirements, employers need to be consistent in vaccination policies, adding that "consistency in enforcement is crucial for establishing the legitimacy of the policy and the proper decision for disciplinary action."