A few weeks back, we shared ideas for navigating the minefield of vaccine policy from Art Caplan, one of the country’s leading bioethicists. Art had valuable advice on countering misinformation and recognizing your power to influence behavior, among other things.

But on an issue like this, leaders also need to hear from legal experts. Which is why Ken Banta spoke about it with Joe Hamid, a partner at Debevoise & Plimpton who specializes in employment litigation and other commercial matters.

Joe thinks a company’s GC can offer important guidance about what’s permissible in vaccine policy, as well as what’s advisable. The answers aren’t simple. In addition to potential liabilities for failing to protect workers if they don’t mandate vaccination, employers may risk legal action if they do:

Rightly or wrongly, there are women who are either pregnant or want to become pregnant who think it's going to harm them. And some Black employees, for reasons that are rooted in real history, have a greater skepticism about mandates. Then there are regional and political differences — maybe not a protected class [issue], but do you want to be imposing something that your Republican or Southern employees are more skeptical of than your liberal Democrat and Northeastern ones?

— Joe Hamid, Partner, Debevoise & Plimpton

Could ignoring these points of view and imposing a take-it-or-leave-it mandate lead to discrimination claims? “I think that's a possibility,” Joe says. “I think those would be winnable cases, but I don't think any employer wants to actually face them and litigate them.
 

That’s one reason he advises looking beyond the question of what the law allows.

You also have a compelling interest in respecting individual choice, and not overriding people's genuine, even if mistaken, concerns about vaccination… Finding the right balance between competing moral considerations or competing values [requires] bringing more people into the decision-making loop. We need to bring to bear not only legal expertise but medical expertise, and then [campaign] for broader buy-in [beyond] just the Legal Group.

— Joe Hamid

For more highlights of Ken and Joe's conversation, watch the video below.