With Mandatory Vaccine Policies On the Rise, Should Your Business Implement One?
This Legal Update has been updated with information available as of August 18, 2021.
The highly-anticipated “summer of freedom” from the COVID-19 pandemic has turned much more muddled. Despite approximately 70 percent of Americans 12 years and older getting at least one vaccination dose and 51 percent fully vaccinated, the pandemic that does not seem to end has led the Centers for Disease Control and Prevention (CDC) to modify its guidance slightly from earlier in the summer. The CDC now is recommending even fully vaccinated people wear masks indoors in locations with high COVID-19 transmission rates. The changing mask guidance and still lower than optimal vaccination rates have many employers grappling with whether to mandate vaccination as a condition of employment. Recent developments, including legal opinions, court decisions, and steps by state governments, may assuage employers’ concerns about imposing such mandates.
The Equal Employment Opportunity Commission (EEOC) provided employers with some comfort when it issued guidance in May 2021 on mandatory employer COVID-19 vaccination programs. The EEOC clarified its previously murky stance on this issue, expressly stating that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” as long as employers allow for reasonable accommodation of their vaccine mandate for medical or religious reasons. Like all requests for accommodation, the EEOC confirmed employers may avail themselves of the “undue hardship” exception for denying an employee’s request for accommodation.
Some employers remained reluctant to issue mandatory vaccine policies for varying reasons, including because the vaccines were only authorized under an “Emergency Use Authorization,” but recent developments may provide further support for employer mandates.
The DOJ clarifies the impact of “EUA” status on mandatory vaccine policies. Initially, employers viewed the U.S. Food and Drug Administration’s (FDA) “emergency use authorization (EUA)” for vaccines as an impediment to mandating vaccines before the FDA granted full authorization. On July 26, 2021, however, the U.S. Department of Justice’s (DOJ) Office of Legal Counsel issued an opinion that EUA status does not prevent public and private employers from imposing vaccine requirements.
Several courts have upheld mandatory vaccination policies. For example, on June 2, in Bridges v. Houston Methodist Hospital, a Texas district court applying Texas-state law held that the hospital employer’s vaccination mandate was lawful and that the hospital could terminate employees who refused to comply with the policy. Helpfully, the Texas court provided a similar analysis as the subsequent DOJ’s opinion by concluding that the EUA risks and limitations do not apply to private employers. The court applied Texas state law in the healthcare context; however, the court emphasized that a private employer has the right to mandate vaccines and terminate employees who refuse to comply with the mandate. This broad holding should provide guidance to employers with employees in other states and industries.
Another recent case challenged Indiana University’s mandatory vaccination policy for students, which required students to be vaccinated to matriculate for the upcoming school year. A federal district court in Indiana rejected the challenge, holding that the vaccine mandate did not violate the 14th Amendment but was a reasonable and legitimate interest of public health. The students’ attempts for temporary relief from the decision from both the Seventh Circuit Court of Appeals and the U.S. Supreme Court have been unsuccessful.
It remains to be seen whether similar vaccination mandates will be upheld in other states, but the trend seems to favor enforcement of mandatory vaccination programs.
Various government employers have mandated vaccines for government employees and certain industries. Recently, federal and some state employers, including in California, Oregon, and Washington, have announced mandatory vaccination programs for government workers, and several states have mandated vaccination for certain health care workers. See here for Lane Powell’s Legal Update further discussing these mandates. These government mandates have led many private employers to consider doing the same. However, private employers who adopt mandatory vaccination policies still must consider employees’ requests to be exempt from the policy for medical and religious accommodation reasons and still face some legal risks.
Lane Powell’s team of attorneys is here to help you develop and implement the strategy that supports your business and your employees. For more information, consult Lane Powell’s COVID-19 Resource Center or contact Katheryn Bradley, Courtney McFate, Priya Vivian, or Riley Moyer.
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