American employers are caught between needle and hardship. Many feel that they cannot safely reopen the office at full capacity without their employees being fully vaccinated. But they also know that they cannot necessarily require employees to be vaccinated. Conflicting regulatory protocols for vaccine mandates and passports at the state, local, and state levels are causing companies across the country to evaluate options with concern. For lack of time without clear guidelines, employers give their best.
Can employers require their employers to be vaccinated? Can anybody? That is the legal question that looms across much of the United States right now. The Occupational Safety and Health Agency (OSHA) and the Center for Disease Control (CDC) have provided little information on this subject. The need for vaccines calls for a way to tell if someone has been vaccinated, guidance that the CDC has so far refused. Doing that yourself is proving to be a sensitive issue. States like Florida, Arizona, South Carolina, Texas, and others have banned vaccination certificates. The ban on vaccination records does not prevent employers from requesting vaccination, it only makes it difficult to determine who has not been vaccinated.
Legal proceedings have started. Indiana University students are suing schools over their recent COVID-19 vaccine requirements. Similar situations play out in the Los Angeles Unified School District, a detention center in New Mexico, a sheriff’s division in North Carolina, and even a hospital in Houston that employs 26.00 health workers. The lawsuits have a similar theme: the vaccine may not be needed because it is only approved for use in emergencies. Legal experts have questioned the argument, but threatened lawsuits are causing HR and legal departments to pause. Vaccination requirements have been commonplace for years in the office and in public spaces to combat measles, mumps, flu and other diseases. As long as employers do not discriminate against an employee on the basis of race, color, religion, gender, or national origin, employers have the legal power to set rules for vaccinations in the workplace.
The Houston Methodist, whose slogan is “Leading Medicine,” leads the vaccine needs of its employees. The hospital suspended 200 employees without pay for not receiving the vaccine, according to requirements set by the hospital system. Of the suspended employees, 117 signed a lawsuit alleging that the vaccine made them “guinea pigs”. Houston Methodist said Texas labor law only protects workers from dismissal if they refuse to commit a criminal act. Since receiving a vaccine is not a criminal act, it is entirely within the employer’s right to request it. US District Court judge Lynn Hughes approved the hospital system. “Methodist tries to save lives without giving them COVID-19,” wrote Hughes in dismissing the lawsuit. “It’s a choice made to make employees, patients, and their families safer.”
The plaintiffs plan to appeal. Employees who did not quit were recently fired from the hospital system.
“What is shocking is that many of my clients were on the frontline treating COVID-positive patients at the Texas Methodist Hospital during the height of the pandemic,” Jared Woodfill, an attorney representing the plaintiff, told KPRC. “As a result, many of them contracted COVID-19. As a thank you for their service and sacrifice, the Methodist Hospital gives them a pink slip of paper and condemns them to bankruptcy. “
The best legal guidance to date on this topic comes from the Federal Commission for Equal Opportunities (EEOC), which states that employers can legally vaccinate their employees before they return to work, as long as religious freedoms and the rights of disabilities are not violated. Title VII of the Civil Rights Act of 1964 states that employers must respect religious beliefs. The Americans with Disabilities Act states that employers can create a workplace policy that includes requirements that an individual does not pose a direct hazard to the health or safety of the workplace. However, if an employee cannot be vaccinated because of a disability, reasonable precautions must be taken. If reasonable accommodation is not possible, an employee can work remotely or take a leave of absence. Otherwise, termination is the next option. Employers considering dismissal based on vaccinated status should verify that they are not violating other rights under EERO laws at the federal, state, and local levels.
Employers may have a lot of legal support to require vaccinations as long as precautions are taken, but most opt for a gentler approach. The law remains so vague that most companies would rather not risk it. Companies choose to offer incentives to get vaccinated rather than letters of resignation when they refuse. At the moment it seems to be working. Complaints are well known, but seldom remained. Even in the Houston Methodists’ case, plaintiffs make up less than 1 percent of the system’s workforce.
In late May, the EEOC approved employers to offer limited incentives to workers who are vaccinated. As long as the incentives are not big enough to be “coercive”, companies can offer their employees perks and rewards if they are stung. The news was well received by the business community. Several companies have already announced incentive plans. McDonald’s offers workers four hours of PTO to get vaccinated.
Employers offer time. Lawsuits can lead to state courts. The legal challenge to vaccine requirements will only last for a limited time. When COVID-19 vaccines get full approval from the FDA, the legal position in which anti-Vax activists advance their arguments will be even smaller. Before long, employers, school districts, colleges, and other institutions will be able to request it, just as they are currently doing for a variety of other vaccinations. Moderna and Pfizer have already started the full approval process. Health experts hope that full approval will drive vaccination rates even higher. Even if approval is likely, as experts predict, it is still several months away.
Conflict is not good for business or productivity. Avoiding litigation with employees is always a better option, even if an employer is legally entitled to do so. At the moment, vaccines are highly recommended and reasonable precautions are taken. With the legal world waiting for a clear direction, employers hope that more workers will be vaccinated with honey than with vinegar.
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