Employers are considering whether to require their employees to receive Covid-19 vaccines. This question is fraught with legal and non-legal issues. To further complicate matters, the legal framework that underlies an employer’s right to order a Covid-19 vaccine continues to shift under the employer’s feet.
In an update to their Technical Assistance Guide on December 16, 2020, the Equal Employment Opportunity Commission clarified that employers can prescribe Covid-19 vaccines for their employees under the Americans With Disabilities Act if (1) employees take the vaccine at a Received a third-party healthcare provider or pharmacy that does not have a contract with their employer to give the vaccine; and (2) employers make arrangements for religious objections under Title VII of the Civil Rights Act and disability-related objections under ADA.
Although it is now clear in federal labor law that employers can mandate a Covid-19 vaccine, state lawmakers can enact anti-discrimination and other laws that are more restrictive and provide additional protection for workers that undermine an employer’s mandate to use the vaccines.
And that is exactly what some legislators propose.
Bills introduced to prevent compulsory vaccination
At least nine states are considering bills to prevent state and local governments and private companies from mandating Covid-19 vaccinations. The rise in this type of state legislative activity underscores the divide in vaccines, especially when administered under an emergency permit in the United States
Although the development of a Covid-19 vaccine at “warp speed” was a welcome step forward and a crucial moment in the global fight against the novel coronavirus, in practice it is understandable that many people are afraid to inject a vaccine that doing this has broken records for the speed at which it was developed and approved for use. In addition, there are many people who question the safety of vaccines in general.
Indeed, the split over the Covid-19 vaccine problem – and the issue of the vaccine mandate – has resulted in diametrically opposed bills being introduced in certain states.
For example, a bill introduced in the New York State Assembly provides that no “vaccine used to induce immunity to coronavirus in humans in this state is a mandatory immunization” and no “person is required to have such a vaccine Unless individuals are vaccinated. “
At the same time, however, the New York State Senate is considering a bill to make the Covid vaccine mandatory for those who, clinical data suggests, can safely receive the vaccine once (1) the U.S. Food and Drug Administration and the New York State Clinical Advisory Task Force approve the vaccine’s safety and effectiveness and (2) public health officials “note that residents of the state are not developing adequate immunity to Covid-19”.
Invoices are sent directly to employers
Although some of the proposed laws are only aimed 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 the South Carolina House of Representatives in December stipulates that “employers are prohibited from taking negative employment measures against … those who exercise the right not to be vaccinated.” The term “negative employment measures” includes in particular “termination, suspension, involuntary reassignment or demotion”.
While this would not rule out voluntary reallocation, employers are familiar with the difficulty of determining what is and what is not voluntary in the employment context.
Washington state law also introduced a bill (HB 1065) that would prevent an employer from requiring an employee to receive the Covid-19 vaccine “as a condition of employment” when “verbally or in writing “is a declaration of medical, philosophical or religious contradiction. “This would also prevent private institutions from requiring receipt of the Covid-19 vaccine until it is approved for use and other specific clinical research requirements are met.
By far the most aggressive bill aimed at employers is in Minnesota, where lawmakers have proposed that it be a crime that provides for at least 10 years’ imprisonment for every “agent” of a “company” to ” treat differently, single out, ”denying the opportunity to exclude, stigmatize or discriminate against a person for making a decision on whether or not to receive a vaccine. “
It remains to be seen whether one of these bills will be included in the law. If this is the case, the federal government’s ability to counteract such laws is limited by the trade clause, which restricts the federal government’s ability to regulate non-economic activities in the states.
Hence, employers need to be aware of the potential that this type of legislation can be passed in a state where their employees either live or work (as one state law could apply in both jurisdictions). This state legislative work is another consideration for employers when wondering whether to make Covid-19 vaccines mandatory or simply encouraged in the workplace.
Benefits of employer productivity versus pitfalls
In addition to these potential government legal barriers, employers must weigh the benefits of vaccinated workers in terms of productivity and a “return to normal” versus addressing the moral issues raised by such a mandate.
There are also the potential legal pitfalls associated with requests for accommodation based on religious and disability-related objections.
Employers must also consider potential claims by workers that they may refuse to take the vaccine by exercising whistleblower rights under the Occupational Safety and Health Act or the right to protected concerted activities under the National Labor Relations Act.
Or, if they are released for not receiving the vaccine, they can seek an unlawful release in violation of public order.
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 have to participate in this balancing act is likely to continue to change.
This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.
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Karla Grossenbacher is Chair of Labor and Employment Practice in Seyfarth’s Washington, DC office and Chair of the National Workplace Privacy team.
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