Hawaii employers eye vaccination mandates

For Clarice Cornett, owner of Wahine Builders and Electric on Oahu, the decision to require her workers to get the COVID-19 vaccine was a simple one that came down to workplace safety.

The construction industry can be dangerous as it is. “So I think we are just hardwired to think about the safety of our crew all the time,” she said.

Cornett, who employees 14 people, said her workers were all eager to get vaccinated and easily embraced the requirement. The mandate has lost her several prospective hires, but she said it’s not something she plans to roll back.

“I feel it’s a civic responsibility. It’s a moral duty,” she said of getting vaccinated.

Wahine Builders and Electric is among a smattering of businesses in Hawaii that are mandating the COVID-19 vaccine for employees amid federal guidance that it’s OK to do so.

The Equal Employment Opportunity Commission, which enforces workplace discrimination laws, in December said employers can require vaccination against the virus, which has infected 36,535 in Hawaii and resulted in 502 deaths. On May 28, the agency updated its guidance reiterating that federal laws don’t prevent employers from requiring the vaccine, though exceptions should be made to accommodate religious beliefs or medical conditions.

The agency also said employers can offer incentives for workers to get the vaccine so long as they aren’t “coercive.”

The owner of Tiki Iniki, a bar in Princeville, Kauai, made the decision to mandate the vaccine in March, while other small businesses, such as a nursery in Waimanalo and a business looking for security officers in Kaneohe, also require it, a review of job ads on Craigslist shows.

As more companies welcome workers back to offices and job sites, with coronavirus case counts in Hawaii low and vaccines readily available, employers have been increasingly grappling with whether to require immunization. So far, many have shied away from it, but more employers could begin adopting the requirement if the Food and Drug Administration issues final approval of any of the vaccines currently authorized for emergency use.

Pfizer and BioNTech applied in early May for full approval of their vaccine. Moderna submitted its request to the FDA just this month. Final approval is widely expected and could come as early as this summer.

For some employers, whether to mandate the vaccine isn’t an easy decision. Some restaurants, hotels and retail outlets have struggled to hire back workers and worry a vaccine mandate will make it even harder or cause current employees to leave.

After the Tiki Iniki made the decision to require vaccines as it prepared to reopen in April, nearly one-third of its workers indicated they wouldn’t get vaccinated, The Garden Island reported.

Employers also may worry about wading into an issue that has become politically fraught, with Democrats embracing vaccines at higher rates than Republicans, and conspiracy theories and misinformation circulating about vaccine safety. Labor unions could challenge requirements, while some employers worry it will be difficult to implement exemptions for religious or medical reasons.

Out of 113 employers recently surveyed by the Hawaii Employers Council, only two said they would mandate the COVID-19 vaccine, according to Emily Marr, the council’s assistant general counsel. She said that since the survey, a handful more have expressed interest.

Marr said more employers may begin to implement incentives based on the latest federal guidance, even if they don’t mandate vaccination. National employers such as McDonald’s and Dollar General, for example, have offered employees four hours of extra pay if they get the vaccine, while other businesses have offered employees gift cards.

How far employers can go without the incentive being deemed “coercive” remains somewhat ambiguous, however.

Mandating the COVID-19 vaccine likely will become less of an issue if Hawaii can largely wipe out the virus by achieving so-called herd immunity within the population.

Slightly more than half of Hawaii residents are fully vaccinated, but children under 12 still aren’t eligible for the vaccine. Experts estimate that herd immunity, when enough of a population is vaccinated to largely prevent the virus from spreading, could be achieved at somewhere between 70% and 85%. That calculation is complicated by variants of the coronavirus, as well as unknowns about how long the vaccines remain effective.

Workers’ hesitancy

For hospitals and health care organizations, the issue of mandating the COVID-19 vaccine is particularly weighty since staff routinely interact with vulnerable patients, and an outbreak, particularly in nursing facilities, can have dire consequences.

Discussions about mandating the vaccine began in December, according to Hilton Raethel, president and CEO of the Healthcare Association of Hawaii, a trade group that represents 170 organizations including hospitals, nursing facilities, home health agencies and hospices.

The courts have made it clear that employers can mandate vaccines, Raethel said, noting that some health care organizations in Hawaii require annual flu immunizations, for example. But the courts have never taken up the issue of vaccines that have emergency use authorization. (The only other vaccine to obtain emergency approval was for Ebola.)

The lack of full FDA approval of the COVID-19 vaccines has made businesses more hesitant.

“It’s a challenging issue because we’ve got a public health emergency and we’ve got a worldwide pandemic, and yet there is a lack of guidance in the courts when it comes to vaccines that are approved under emergency use authorization,” Raethel said.

The FDA says the currently available vaccines have been rigorously tested and have undergone extensive clinical trials. But the agency still needs to wait six months after the clinical trials to evaluate all of the data.

Some health care organizations have approved vaccine requirements anyway, such as Houston Methodist Hospital, though 117 unvaccinated staffers recently sued the hospital over the mandate. More than 450 college and university campuses also have issued vaccine mandates for a mix of employees and students, though some, including the University of Hawaii, have conditioned it on final FDA approval of the vaccine.

So far, UH’s vaccine mandate is only for students, though the university said last month it’s in discussions with employee unions about mandating it for staff.

Raethel said many health care organizations in Hawaii haven’t issued a mandate because they anticipate final FDA approval will come soon, making it easier just to wait.

“We believe that there will be number of organizations in Hawaii that will issue vaccine mandates as soon as the manufacturers receive full FDA authorization,” he said.

Still, several of Hawaii’s major hospital operators indicated they were not preparing to require the vaccines, even with full FDA approval.

A spokeswoman for Kaiser Permanente in Hawaii said employee vaccination will be required only if mandated by the state or counties.

The Hawaii Pacific Health system, which includes Kapiolani Medical Center for Women & Children, Pali Momi Medical Center, Straub Medical Center and Wilcox Health on Kauai, said more information was needed before making a decision.

“With more to learn about how the COVID-19 vaccine will be part of our regular healthcare needs moving forward, such as the need for booster shots or whether we will need it annually like the flu shot, we believe more information is needed before any decision is made about it being a requirement for staff,” Kristen Bonilla, a spokeswoman for Hawaii Pacific Health said by email.

Jason Chang, chief operating officer for Queen’s Health Systems, said in a statement the hospital hasn’t considered a mandate, given the vaccines’ emergency use authorization.

“While we are pushing to reach the statewide herd immunity threshold, Queen’s employees have embraced COVID-19 vaccines with 86% of our employees being vaccinated,” he said.

Mandating vaccines among health care workers has been a flashpoint of debate in many states, particularly with reports of the high percentages of nurses declining to be vaccinated. Three months into the effort to vaccinate health care workers, just over half had received at least one shot, according to a March survey conducted by the Kaiser Family Foundation and The Washington Post.

Raethel said there was initial hesitancy among some health care workers in Hawaii, but with time more have opted to get the vaccines, as they’ve shown to be very safe and entail minimal side effects. He said overall close to 85% of all employees with Hawaii’s hospitals are now fully vaccinated.

“We are incredibly fortunate that the COVID vaccines are as effective and as safe as they are,” Raethel said, noting that nationally close to 600,000 people have now died from the coronavirus.

“That is a staggering death toll,” he said.