July 9, 2021

Whether to Mandate Employee Vaccination: Board’s Oversight Role

Liz blogged last December about companies potentially being caught in the middle of the vaccine debate. With increased attention on boards relating to human capital and worker safety matters, this likely pulls considerations about vaccines into the conversation. As companies – and law firms – make plans about possibly returning to the office, many companies are wondering whether they can or should mandate vaccines for employees that do return to the office. One aspect of mandatory vaccination programs that hasn’t received a lot of attention relates to the board and its oversight role. A well-timed memo (see pages 4-7) from Sidley Austin provides a discussion about considerations for boards relating to potential company Covid-vaccination programs.

As noted in the memo, boards will need to consider various risks such as litigation and reputational risk, and whether a company chooses to require employees be vaccinated will depend on, among other things, their specific circumstances and tolerance for risk. Here’s an excerpt with discussion about the board’s oversight role with respect to company Covid vaccination programs:

Oversight of the program may be undertaken by the full board or handled by a board committee—most logically the committee tasked with overseeing human capital management matters. The board (or committee) should assess whether management is taking appropriate action with respect to the vaccination program—but also office reopening plans and workforce strategy more broadly—and provide guidance and direction to the extent the board determines is prudent. The board should also ensure that there is a robust, confidential system in place for employees to raise concerns and a firm policy against retaliating against an employee who refuses to be vaccinated. To be most effective, the board must stay well-informed of developments within the corporation as well as the rapidly changing situation externally.

– Lynn Jokela