As of June 30, 2021, almost 155 million Americans, 46.7% of the population, had been fully vaccinated against COVID-19. The vast majority of those individuals are over age 18, and more than 57% of adults over age 18 in the United States have been vaccinated. Rates of infection, hospitalization, and death from COVID-19 have all plummeted among the vaccinated population.
However, more than 20% of Americans surveyed indicate that they do not plan to get vaccinated. While there are regional differences in vaccine reluctance, it is safe to say that many or most workforces will include some individuals who, left to their own devices, will choose not to be vaccinated. This sizable percentage of individuals who remain unvaccinated raises the question of whether employers can, if they wish, require employees to be vaccinated as a condition of employment.
While litigation over the issue may continue over the next few years, the legal answer seems to be shaping up as “yes.” There is no doubt that employers will need to consider reasonable accommodations for the religious beliefs or disabilities of employees that may restrict or inhibit the use of vaccines. Beyond those reasonable accommodation exceptions, however, the broader-based legal challenges to employer-mandated vaccination have been failing.
For example, the Equal Employment Opportunity Commission (EEOC) announced in late May 2021, that the federal equal employment laws that it enforces do not prevent an employer from requiring that all employees physically entering the workplace be vaccinated for COVID-19, subject to reasonable accommodations for religious beliefs and disabilities. Some states have taken the same approach as the EEOC. To illustrate, earlier this year, New Jersey issued guidance stating that “[a]n employer can require that an employee receive the COVID-19 vaccine in order to return to the workplace, unless the employee cannot get the vaccine because of a disability, because their doctor has advised them not to get the vaccine while pregnant or breastfeeding, or because of a sincerely held religious belief, practice, or observance.” More recently, on June 12, 2021, a federal court in Texas dismissed a lawsuit brought by employees of a hospital that required vaccines for employees, holding that Texas law only recognizes wrongful termination claims for employees who are fired for refusing to commit an act that carried criminal penalties to the worker, and that taking a COVID-19 vaccine is not a criminal act. The employees have already filed a notice of appeal with the U.S. Court of Appeals for the Fifth Circuit.
The guidance from the EEOC and New Jersey, and the Texas court ruling, are important, but there is a risk of reading them as definitively authorizing employers to mandate the COVID-19 vaccination. In fact, the EEOC takes pains in its guidance to point out that it only enforces a limited number of federal laws and that other federal laws as well as state and local laws may require a different result. Similarly, New Jersey’s guidance cautions that, even though an employer may be permitted under the state’s antidiscrimination statute to exclude unvaccinated employees from the workplace if there is no reasonable accommodation for their disability- or religious-based reason for refusing vaccination that would effectively mitigate the risk of the virus’s transmission to employees and customers, the employer does not have carte blanche to automatically “discipline” those employees because doing so may be precluded “by other laws, regulations, or policies.” So too, the Texas decision turned on the very limited recognition in Texas of wrongful discharge claims. Texas allows wrongful termination claims only to protect employees from being terminated for refusing to commit an act that carries criminal penalties for the worker. Many states define the “public policy” that can support a wrongful discharge claim much more broadly than does Texas.
In states that recognize relatively broad public policy exceptions to employment at will, there remains some possibility that a wrongful termination claim for refusing to become vaccinated against COVID-19 would fare somewhat better than it did in Texas. The public policy argument is, essentially, that the federal Food, Drug and Cosmetic Act (the Act) authorizes the U.S. Food and Drug Administration (FDA) to issue “Emergency Use Authorization” for vaccines that have not been fully tested and approved through the regular process. The Act provides in those circumstances that the individuals to whom the product is administered must be informed “of the option to accept or refuse administration of the product.” This language, the theory against employer-mandated vaccination goes, establishes a public policy in favor of allowing individuals to refuse to be vaccinated.
The Texas court addressed this issue and concluded that it did not require that any such refusal be free of consequences. It is likely that courts in other states will come to similar conclusions. The very same statutory section of the Act that requires that recipients be informed that they may refuse to be vaccinated with a product that has only Emergency Use Authorization also states that individuals should be told of “the consequences, if any, of refusing administration of the product.” That language implies, at least, that there may be consequences for refusing to be vaccinated.
UPDATE: On July 27, 2021, the White House released a Memorandum Opinion for the Deputy Counsel to the President dated July 6, 2021 on whether the Emergency Use Authorization status of the currently available COVID-19 vaccines prevented certain entities from mandating vaccination. The opinion, prepared by the U.S. Department of Justice, concluded that neither the Act nor the FDA prohibits entities from imposing vaccination requirements while the only available vaccines are subject to Emergency Use Authorizations. This opinion does not have the force of law, but it will likely be very persuasive in any court actions challenging an employer’s mandatory vaccination program. However, it is worth noting that the opinion’s conclusion is qualified by the Department of Justice’s concession that it has not addressed whether other federal, state or local laws might restrict private or public entities from adopting particular vaccination policies.
While there remains some legal risk, the larger concern for most employers will be more nuanced assessments of how best to handle a returning workforce in which some number of employees do not wish to be vaccinated. Many businesses are having difficulty filling positions, and an inflexible mandate could result in the loss of skilled and valuable workers. Conversely, some employees may be reluctant to return to work if a significant number of their colleagues remain unvaccinated, which could also result in the loss of good employees.
Employers should assess, and periodically reassess, their specific environments and decide how best to balance these competing concerns. As vaccination rates increase and the danger of COVID-19 hopefully dissipates, employers may well decide that they can maintain a safe workforce without mandating vaccination. Conversely, if case rates begin to rise again and/or an employer has a particularly vulnerable workforce or client base, then mandatory vaccination may become more common. The important common factor is that employers and employees should examine the issue in light of their specific circumstances and in light of updated and evolving medical and scientific information.
In any event, employers need to remain mindful of the following issues:
- Employee medical information, including whether an employee has been vaccinated and any written proof of vaccination, should be maintained as confidential.
- Employees with medical conditions that prevent vaccination or limit the effectiveness of vaccination are entitled to a reasonable accommodation if it would allow the employee to perform the essential functions of the job; the only way to determine whether such an accommodation exists is through an interactive process between the employee and the employer that addresses the specific job and the specific medical issue.
- Similarly, if an employee has a sincerely held religious objection to vaccination, an employer must discuss a reasonable accommodation if one is available.
The reopening of traditional workplaces will bring with it many challenges. Employers should keep in mind both the legal and the practical risks as they craft policies governing that return.
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