Chamber Chatter: Sensible issues for personal employers contemplating COVID-19 vaccine mandates | Enterprise

In Arizona, a number of hospital systems have policies in place that require their employees to be vaccinated by November 1st. Although there are no known legal challenges to these guidelines, courts in other states have looked into the issue.

In the past few months, courts have confirmed vaccine mandates. In the Texas case, 117 hospital employees challenged the hospital’s policy requiring employees to receive a COVID-19 vaccine as a condition of ongoing employment. The plaintiffs alleged that workers who had been terminated had been wrongly dismissed. The district court cited the EEOC guidelines, which confirmed employers can use vaccine mandates without breaking EEO laws. In a strong statement advocating mandatory vaccine guidelines, the court found that employees “are free to choose whether to accept or decline a COVID-19 vaccine; Anyway if [they] refuse, [they] I just have to work somewhere else. ”The plaintiffs then appealed the decision to the Fifth District Court of Appeal.

In one case in Indiana, eight students questioned Indiana University’s policy that requires all students, staff, and faculty to receive the COVID-19 vaccine before starting classes in August unless they have themselves qualified for a religious or medical exception. If a student qualifies for an exemption, the student would need to wear a mask at all times and also undergo regular tests. The eight student plaintiffs challenged the policy, alleging it violated the due process clause of Amendment 14 of the US Constitution. The court dismissed the lawsuit, ruling that Indiana University had a legitimate interest in the public health of its students, faculty, and staff. On August 2, the Seventh Circuit upheld the district court’s decision.

Arizona private, healthcare, or otherwise employers considering a vaccination mandate for your business should consider the following:

• The policy must contain a medical exemption. The Americans with Disabilities Act (“ADA”) requires employers to take reasonable precautions for those employees who are unable to meet the vaccination mandate due to a medical condition


• There must be an exemption for someone whose sincere religious beliefs prevent them from getting vaccinated. According to Title VII, employers must take reasonable precautions, unless this constitutes undue hardship.

• Employers should notify workers of the date by which the worker must be fully vaccinated. The employee can plan a vaccination, apply for an exemption or look for another job.

• Employers can ask their employees to provide proof of COVID-19 vaccination. The EEOC Guideline allows employer inquiries to an employee regarding the receipt of a vaccine from a third party, stating that the inquiry is not related to a disability. However, employers are cautioned not to make further inquiries beyond the employee’s vaccination status as further questions could lead to disability-related information.

• Employers must ensure the confidentiality of vaccine-related information. According to the ADA, the EEOC guideline requires employers to keep COVID-19-related information separate from the employee’s personnel file and to keep the information private and confidential.

Employers must keep abreast of government laws in this area. For example, in Arizona a law was proposed that would prohibit employers from requiring an individual to be vaccinated as a condition of employment. The bill did not advance. Meanwhile, in Colorado, HB 1191 would have banned an employer from taking adverse action against an employee or job applicant based on their COVID-19 vaccination status, but that bill has been postponed by the House Health and Insurance Committee. In Montana, however, Governor Greg Gianforte signed House Bill 702 on May 7, prohibiting employers from requiring workers to disclose their vaccination status and requiring employers to have certain types of vaccines or an immunity passport.

Jessica Post is the director of the Employment Practice Group at Fennemore. Jason Nutzman is an attorney with Fennemore.

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