Employers are mulling whether they should require their employees to receive Covid-19 vaccines. It is a question that is fraught with issues, both legal and non-legal. To complicate matters further, the legal framework underpinning an employer's right to mandate a Covid-19 vaccine continues to shift beneath employers' feet.
In an update to its technical assistance guide on Dec.16, 2020, the Equal Employment Opportunity Commission made clear that employers can mandate Covid-19 vaccines for their employees under the Americans With Disabilities Act if (1) the employees get the vaccine at a third-party health care provider or pharmacy that does not have a contract with their employer to administer the vaccine; and (2) the employers make accommodations for religious objections under Title VII of the Civil Rights Act and disability-related objections under the ADA.
However, even though it is now clear under federal employment law that employers can mandate a Covid-19 vaccine, state legislatures can enact anti-discrimination and other laws that are more restrictive, and provide additional protections to employees that erode an employer's ability to mandate the vaccines.
And that's exactly what some state lawmakers are proposing to do.
Bills Introduced to Prevent Mandatory Vaccination
At least nine states are considering proposed legislation designed to prevent state and local governments and private businesses from mandating Covid-19 vaccinations. The uptick in this type of state legislative activity underscores that divisive nature of the vaccines, especially while they are being administered under an emergency use authorization in the U.S.
Although the "warp speed" development of a Covid-19 vaccine has been a welcome advancement and a pivotal moment in the world's fight against the novel coronavirus, in practice, it is understandable that many individuals have trepidation about being injected with a vaccine that has broken records for the speed with which it was developed and authorized for use. And beyond this, there are many individuals who question vaccine safety in general.
Indeed, the divisive nature of the Covid-19 vaccine issue-and the question of vaccine mandate- has led to diametrically opposed bills being introduced in certain states.
For example, a bill introduced in the New York State Assembly provides that no "vaccine used for the purposes of inducing immunity against coronavirus in humans in this state shall be a mandatory immunization" and no "person shall be required to receive such vaccine unless such individual chooses to be vaccinated."
At the same time, however, the New York State Senate is considering a bill that would require the Covid vaccine to become mandatory for those who can, as shown by clinical data, safely receive the vaccine once (1) the U.S. Food and Drug Administration and the New York State Clinical Advisory Task Force approve the safety and effectiveness of the vaccine and (2) public health officials "determine that residents of the state are not developing sufficient immunity from Covid-19."
Bills Aimed Directly at Employers
Moreover, although some of the proposed laws are directed only at the ability of state and local governments to mandate Covid-19 vaccines, others are aimed directly at employers.
For example, a bill introduced in December in the South Carolina House of Representatives provides that "employers are prohibited from taking any adverse employment action against...any individual who exercises the right not to be vaccinated." The term "adverse employment action" specifically includes "termination, suspension, involuntary reassignment, or demotion."
While this would not rule out a voluntary reassignment, employers are familiar with the difficulty of establishing what is and is not voluntary in the employment context.
A bill (HB 1065) has also been introduced in the Washington State Legislature that, if passed, would prevent an employer from requiring an employee to receive the Covid-19 vaccine "as a condition of employment" if they make a "verbal or written declaration of medical, philosophical, or religious objection." It would also prevent private entities from requiring receipt of the Covid-19 vaccine until it is licensed for use and other specific clinical research requirements are met.
The most aggressive proposed legislation by far aimed at employers is in Minnesota where state lawmakers have proposed that it be a felony that carries a minimum sentence of 10 years in prison for any "agent" of a "business" to "treat differently, single out, deny opportunity, ostracize, stigmatize, or discriminate against an individual as a result of the individual's decision on whether or not to receive a vaccine."
Whether any of these bills will be passed into law remains to be seen. If they are, the federal government's ability to counter such laws is limited by the Commerce Clause, which places restrictions on the federal government's ability to regulate non-economic activity in the states.
Therefore, employers must remain aware of the potential for this type of legislation to be passed in a state in which their employees either live or work (as a state law in either jurisdiction could apply). This state legislative activity is one more consideration for employers when confronting the question of whether to mandate Covid-19 vaccines in the workplace or simply encourage them.
Employer Productivity Benefits Versus Pitfalls
In addition to these potential state legislative obstacles, employers must balance the benefits of vaccinated workforce in terms of productivity and a "return to normal" against navigating the morale issues presented by such a mandate.
There are also the potential legal pitfalls that come with accommodation requests based on religious and disability-related objections to consider.
Employers must likewise consider potential claims from employees that they can refuse to take the vaccine by exercising whistleblower rights under the Occupational Safety and Health Act, or under the right to engage in protected concerted activity under the National Labor Relations Act.
Or-in the event they are discharged for not getting the vaccine-they may allege wrongful discharge in violation of public policy.
This balancing act will have different outcomes for different employers, from health care to hospitality to typical office environments. And the landscape against which employers must engaged in this balancing act will likely continue to change.
Previously published on January 13 in Bloomberg Law.
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