Despite the ongoing COVID-19 pandemic, accounting firms, so far, have been hesitant to implement vaccine mandates with their staff, and the ones that have are in a definite minority. That may change, in light of President Joe Biden’s recently issued mandate, requiring all employers with 100 or more employees to ensure that their employees are fully vaccinated or show a negative test at least once a week. The NYSSCPA conducted a member survey in June and July about workplace changes in response to the pandemic. Out of 548 respondents to a question about staff vaccine requirements, just 138, or 25 percent, reported that their offices have implemented any. Much more prevalent were mask requirements and social distancing rules: Out of 553 respondents to a question about COVID safety protocols, 340, or 61 percent, said their offices require masks, and 375, or 67 percent, said their offices have imposed social distancing.
As of August, mandates were still a rarity, according to Robert S. Fligel, a consultant who specializes in CPA firms. In an informal survey of 10 firms he has worked with—six with staff between 20 and 60, and four with over 200—only two had a mandate in place that required proof of vaccination—either a card or an Excelsior pass. Of those two, only one did so on its own; the other did so because the building it was based in required a vaccine mandate. One additional firm is currently considering a vaccine mandate, but only for partners and principals. The rationale would be to set an example for others in the firm by starting at the top; as of this writing, that firm has not yet come to a decision.
“Bottom line, there is no strong consensus on a vaccine mandate,” Fligel said. “Eighty percent of the firms I spoke with are strongly encouraging, but not mandating, vaccination. All firms essentially have a mask mandate for those who are unvaccinated and, in a few cases, proof of recent negative testing.”
This is what Garrett J. Wagner, another consultant who focuses on CPA firms, has also been seeing. While there are some firms where a partner or two are strongly against vaccines, most are on the side of strongly encouraging, but not mandating, vaccines just yet. Like Fligel, Wagner said that firm leaders are much stronger on mask requirements, observing that it’s common practice from what he’s seen, but “not too many have gone to a vaccine mandate.”
Wagner’s own firm does not have a mandate, but this is because it is a very small firm that, as of the pandemic, works almost entirely remotely. With no one coming back to the office on a regular basis, the question of vaccine mandates is mostly moot. He said this is the case for many younger firms, noting that the firms that have to juggle questions about whether to mandate vaccines tend to be larger firms with an emotional investment in maintaining a physical office.
“A lot of the more successful firms are more virtual now, so it’s not as big a deal,” Wagner said. “The older firms, still traditional, are having problems because they’re trying to get everyone back in the office and clinging to being a physical firm for their dear life, despite the fact the world has moved on. This is one of those things they’ll need to figure out, with all those people in one space.”
This very much describes the situation of Jocelyn R. Nager, president of the Manhattan law firm Frank, Frank, Goldstein & Nager, P.C., which is a very small firm where most people are now working online. Nager said that while she did not have an official policy for her small firm, vaccination status is still a thing she would keep in mind in the case of hiring people.
“If we were going to hire someone, we’d have a strong preference that they be vaccinated. I’m vaccinated, as is our staff, and we’d like [it] if our new hires would be the same,” she said, adding that she hasn’t met clients in her office since 2020.
On July 27, the Foundation for Accounting Education (FAE) presented a webcast titled, “The Great Reopening—Tax and Employment Law Issues as We Return Back to Work.” Glen P. Doherty, a partner at Hodgson Russ LLP, gave a presentation on some of the legal issues concerning vaccination. He said that the Equal Employment Opportunity Commission (EEOC), in December 2020, issued guidance saying that employers can mandate vaccines as a condition of return to, or remaining in the workplace, but they may have to offer accommodations due to employees’ disabilities or sincerely held religious beliefs. Examples of such accommodations include schedule changes, the granting of leave, and mask or testing requirements in lieu of vaccinations.
Doherty noted, however, that in May of this year, the EEOC issued updated guidance, clarifying that it had not previously issued blanket approval for vaccine mandates. Rather, it was opining on the legal implications under the federal anti-discrimination laws, and not the overall legality of vaccine mandates. He noted that the possibility of lawsuits over vaccine mandates had pushed most employers to encourage rather than mandate vaccination. There will be a replay of this webcast on Sept. 21.
But the FAE webcast preceded the Food and Drug Administration’s (FDA) decision to give full approval to the Pfizer vaccine on Aug. 23. Brian Dean Abramson, the author of Vaccine, Vaccination, and Immunization Law, was quoted by Reuters, saying that the FDA decision was “seismic” and that it will be difficult for most employees to challenge vaccination mandates of the approved vaccine.
On Sept. 9, President Joe Biden announced a sweeping vaccine mandate that will affect large companies, as well as federal workers and contractors. “I’m announcing that the Department of Labor [DOL] is developing an emergency rule to require all employers with 100 or more employees that, together, employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week,” he said. Specifically, the DOL’s Occupational Safety and Health Administration (OSHA) will introduce an Emergency Temporary Standard to introduce the mandate. If companies don’t comply, they could face fines of $14,000 per violation. This federal mandate is the most extensive since the pandemic began; it could affect as many as two-thirds of U.S. workers.
Many leaders seem to be in wait-and-see mode when it comes to the question of a mandate. This is the situation described by Fred Berk, co-managing partner of Friedman LLP. Berk said that the management committee, in whose hands the decision ultimately rests, thought it was too early to make a choice one way or the other. While the firm had initially intended to reach a decision as of Labor Day, the rise of the Delta variant disrupted its previous assumptions. Now that the president has announced that businesses with over 100 employees will be required to have a mandate in place, the firm is awaiting further details. “Our actions will continue to be guided by what our employees want and need and what is legally required of us as an employer,” said Berk. “Should the firm go through with a mandate, it will strive to do so with the least amount of disruption possible for our employees. We’d want to give people as much notice as possible to work out their personal situations. We are concerned about everyone’s well-being.”
The situation is similar for Grassi, according to Jeffrey A. Agranoff, the firm’s chief human resources officer. Agranoff pointed out that the vast majority of both staff and management are already vaccinated. Leadership is still weighing its options, but does intend to come to a final decision sometime within the next two months. Like Berk, he said that the firm is taking extra care in ensuring that when it does make a choice, it will be an informed one that takes input from stakeholders into account.
“We’re having a lot of candid conversations,” he said. “We want to make sure we understand and collect all the feedback we need to make an intelligent decision so people can be comfortable, because that is what we’re trying to do: protect people and make them comfortable as well.” He added that the firm has run several focus groups devoted to this issue.
Agranoff did say that the firm is leaning toward eventually implementing a mandate for partners and principals. At the same time, it is a little more hesitant to prescribe one for lower-level staff members. He said that the response from them has been more of a “mixed bag.” While many support the idea, there are some who are intensely against it. So, for now, he said ,firm leaders would prefer letting people have a choice, but he added that they’re prepared to change with the circumstances.
“They want to be the ones to make the choice, and right now we’re respecting that, but we want to continue monitoring the landscape, especially the positivity rates in our local areas,” he said. “If we feel, in any of the local areas, it has become unsafe not to mandate it, then we’ll mandate if needed.”
Fligel noted that many firms are doing the same thing, saying that all businesses are trying to perform a balancing act amid an extremely fluid situation.
“CPA firms, like all other businesses, are trying to determine the best course of action based on government directives such as the [Centers for Disease Control and Prevention], what they hear others are doing and, maybe most important, what they feel resonates best, based on their culture,” he said.