As employers wait for the Department of Labor to issue a new rule requiring employee vaccine mandates, a big question looms: Will companies fire workers who don't comply?
Many of the tech giants won't say. A couple of companies have confirmed that they won't: Both Hewlett Packard Enterprise and Pure Storage said vaccination is not a condition of employment, though it's required to come to the office.
Only one software maker — Boston-based Validity — has told Protocol that employees could face termination if they refuse the jab. That even applies to remote workers.
"We're a private employer," said Mike Piispanen, Validity's chief operating officer. "If we wanted employees to wear a clown nose to work every day as a condition of employment, that would be an option."
One employee has left Validity over the company's vaccine mandate, Piispanen said, but the nearly 400-person company hasn't had to fire anyone for this reason.
More than 90% of Validity's employees are currently vaccinated and around a dozen are seeking exemptions for protected medical or religious reasons.
But for those without legally protected exemptions, termination is not out of the question, Piispanen said.
"We don't want that to happen, but we also want our employees to want to be here," Piispanen said. "The downside of accommodating (employees who refuse the vaccine) is they're now putting other people at risk if they're in the office."
Refusing vaccination may make it tougher to get a job in tech. As many as 78% of hiring managers in the computer and IT industry said they wanted to see vaccination status on applicants' resumes in a recent survey.
Will Big Tech fire workers over the vaccine?
Several big tech companies stopped short of saying whether they would fire workers for not getting vaccinated.
Spokespeople for Google, Facebook, Twitter, Uber and Lyft all declined to say whether their employees could face termination for this reason. Google and Lyft only said that employees who don't show proof of vaccination would have to discuss their options with HR.
Neither Uber nor Lyft is currently requiring drivers to get vaccinated.
For office workers, remote work seems like an obvious solution. September Rea, a litigator at the law firm Polsinelli, expects that many companies will continue relegating any unvaccinated employees to remote work.
"I don't see that happening," Rea said. "What I've seen historically — just in the short time we've had vaccination requirements voluntarily — has been they allow people to work from home if they don't want it."
But companies like Validity may want to enforce vaccination regardless. Erin McLaughlin, a shareholder in the labor and employment group at the law firm Buchanan Ingersoll & Rooney, expects policies to vary by employer.
"I think if it's an employer who wants employees to be back in the office, they're not going to be inclined to grant remote work as an accommodation for not being vaccinated," McLaughlin told Protocol. "They're going to take the position that mandatory attendance in the office is an essential function of the job."
For its part, Uber said it was still figuring out how to handle exemptions and would have a better sense by the time it reopens its offices in January. For now, anyone who goes to an Uber office has to show proof of vaccination, the company said.
That seems to be a common theme for large tech employers, many of which plan to continue allowing remote work full time until at least January.
In the coming weeks, Uber and other tech companies are expecting to learn more from the DOL's Occupational Safety and Health Administration. The agency is set to release an Emergency Temporary Standard to require vaccine or weekly testing mandates at companies with 100 or more employees.
Will remote workers have to get vaccinated or tested?
When companies started mandating vaccination earlier this year, it was understood as an effort to prevent the virus from spreading at the office. Why should a company require remote workers — those who never see their colleagues — to get vaccinated?
Federal officials have already indicated that the emergency rule won't apply to remote workers who never go to the office.
If the rule were to apply to remote workers, McLaughlin said that might undermine OSHA's use of the emergency temporary standard and get outside of the agency's purview — which is the workplace.
"It would be unusual for the OSHA rules to require the vaccination for employees who aren't coming to a work location," said Rea. "If someone's working remotely there's arguably no reason it's protecting the worker."
But that doesn't mean companies themselves won't apply them to remote workers — and Validity is proving that there's at least some appetite to do so in the tech sector.
The company isn't alone: Its owners, Silversmith Capital Partners and Providence Strategic Growth, supported a similar set of policies that were applied to other portfolio companies, Piispanen said.
There are several reasons for applying the vaccine mandate to remote workers. For one, in a fierce market for top tech talent, Validity sees its employees as indispensable experts who need to be available to work.
"Having them get sick will have a detrimental impact to our customers and to our business," Piispanen said. "I also think there is a little bit of a duty to care for us as employers for our employees. The science supports vaccines — there's no denying that."
