Many large organizations now require all or most employees to have a COVID-19 vaccine before they are allowed to enter company facilities. Some are mandating it for employees who physically interact with customers or who travel internationally. Some are offering an option of weekly testing in lieu of vaccination.
Reports indicate that most employees are complying with these requirements. However, a small but vocal minority have protested, some to the point of challenging the mandates in court. What should have been a public health and safety question has become a fraught political issue, with vaccine opponents claiming they are being used as “human guinea pigs” and conjuring up images of Nazi medical experiments.
Although these lawsuits have largely failed or face an uncertain future, businesses that are considering whether to require vaccination are naturally concerned about the potential consequences. They also face a quagmire of federal mandates, state laws, and municipal regulations, many of which conflict with one another.
The Biden administration has issued vaccine mandates for federal employees,federal contractors, and health care workers in federally funded facilities. The Occupational Safety and Health Administration (OSHA) has also developed an emergency temporary standard (ETS) requiring organizations with 100 or more employees to mandate the vaccine. These mandates have suffered setbacks in courts, with varying results.
OSHA has withdrawn enforcement of the ETS, although it has not withdrawn it as a proposed rule. The mandate for federal contractors is now enjoined nationwide, and on January 21, 2022, a district court judge in Texas issued a preliminary injunction against the mandate for federal workers. Injunctions against the mandate for health care workers has been lifted, and the Centers for Medicare and Medicaid Services (CMS) has published a state-by-state timeline for implementation. Until the status of these federal mandates is fully resolved, they create uncertainty for employers.
Federal Laws Related to COVID-19 Vaccination Programs
The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance on December 16, 2020, stating that mandatory COVID-19 vaccination programs are lawful as long as employers meet their obligations under federal civil rights laws.
The Americans with Disabilities Act (ADA) and Rehabilitation Act prohibit discrimination based upon disability and require employers to provide reasonable accommodations for people with disabilities. They also prevent employers from asking employees about disabilities or requiring medical examinations unless these are “job-related and consistent with business necessity.” The EEOC guidance states that employers may require proof of vaccination and administer the vaccine without running afoul of these laws.
However, pre-vaccination screening questions are likely to prompt the employee to disclose disability-related information, and must be carefully worded to meet ADA and Rehabilitation Act requirements. Furthermore, employers should not ask employees why they have not been vaccinated.
Before excluding an unvaccinated employee from the workplace, employers must determine if that individual poses a direct threat of “significant risk of substantial harm to the health or safety of the individual or others.” The analysis should consider the contact the individual may have with others and the percentage of employees in the workplace who have been vaccinated, among many other factors. Even if a direct threat is shown, the employer must provide reasonable accommodation for that individual unless it poses an “undue hardship.”
Title VII of the Civil Rights Act of 1964 may also come into play. Employers may not discriminate based upon protected characteristics such as race, national origin, sex, religion, or age (if 40 or over). Therefore, employers must accommodate individuals who refuse vaccination due to a sincerely held religious belief, unless such accommodation causes an undue hardship. The undue hardship standard is less strict under Title VII than under the ADA, but employers must nonetheless conduct a meaningful analysis of the accommodation.
State and Local Laws Regarding Employer Vaccine Mandates
Only two states, Montana and Tennessee, forbid employer vaccine mandates. Another nine states, including Florida, Iowa, Utah, and West Virginia, allow mandates with restrictions. Other states are considering restrictions or in the process of implementing legislation. Generally, these restrictions require employers to grant exemptions based upon medical or religious objections.
On November 18, 2021, Florida enacted one of the most sweeping anti-mandate laws, prohibiting private employers of any size from requiring vaccination unless certain exemptions are granted. These include medical reasons, sincerely held religious beliefs, documented COVID-19 “immunity,” compliance with periodic no-cost testing, and agreement to wear employer-provided personal protective equipment (PPE). Public employers may not require vaccines, even if exemptions are granted. Many of the specifics—such as what qualifies as a medical reason, how often testing may be required, and what constitutes PPE—are undefined. However, given the broad scope of the law, Florida employers will find it difficult to implement any sort of vaccine mandate.
More than a dozen states, the District of Columbia, and Puerto Rico, require vaccines or testing in certain industries and localities. Starting January 2022 in California, for example, workers in public and private schools must show proof of vaccination or submit to weekly testing. A mandate for health care workers to be vaccinated unless exempted for qualified medical or religious reasons went into effect on September 30, 2021. On December 21, 2021, California Governor Gavin Newsom announced that “health care workers and all employees in high-risk settings” must also receive booster doses. California businesses may implement COVID-19 policies that are stricter than those required by the CAL/OSHA ETS.
The Answer Depends on Where the Business Is
Can organizations require employees to have a COVID-19 vaccine? The answer depends on where the business is located.
In most states, for now, employers may mandate vaccines as long as they provide reasonable accommodations for individuals with disabilities and don’t discriminate. In some states, employers may be required to mandate vaccines or testing, while in others, they may face certain restrictions.
Employers should familiarize themselves with state and local laws, consult with counsel, and remain flexible as they develop their COVID-19 safety policies.
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