Are Vaccine Mandates Becoming the “New Normal” For Employers?

Three Questions Employers Are Asking as They Consider Requiring Vaccinations

COVID-19 is once again at the forefront for employers as the Delta variant rapidly surges throughout the country, while vaccination rates lag and new scientific findings explain how the virus spreads. Faced with concerns that rising COVID-19 cases could disrupt business and thwart plans for reopening workplaces, last week many of the country’s largest employers implemented vaccination requirements for employees. This fast-growing trend started in the public sector. On Monday, July 26, 2021, California and New York City introduced vaccination requirements for their employees. Three days later, President Biden announced vaccination requirements for all federal employees. By week’s end, some of the biggest employers in the private sector, from Google and Facebook to Walmart and Disney, set forth their plans to require their employees to be vaccinated against COVID-19. This sudden shift among the largest employers has caused many others (including smaller ones) to wonder whether vaccine mandates for employees will become the “new normal” and if so, what legal ramifications are in store. Here are answers to three of the top legal questions many employers are asking as they consider implementing vaccination requirements for employees.

Is It Legal for An Employer to Require Its Employees to Be Vaccinated?

Initially, employers are asking whether vaccination requirements for employees are legally permissible. The short answer to that question is: yes, with limited exceptions.

Employers have traditionally had the general ability to mandate that employees receive vaccines that have full and final approval of the Food and Drug Administration (FDA), such as the flu vaccine. The wrinkle with COVID-19 vaccines is that all three (the Pfizer-BioNTech, Moderna and Johnson & Johnson Janssen vaccines) are still in the FDA’s Emergency Use Authorization (EUA) phase (although final FDA approval is anticipated in the coming months).

As a result of the EUA status of COVID-19 vaccines, some employers have shied away from setting up requirements that employees be vaccinated fearing the lack of full and final approval from the FDA could create legal complications. However, recent legal guidance has quelled those fears leaving employers on firmer legal grounds to implement vaccine requirements for employees. For example, last week, the Department of Justice Office of Legal Counsel issued guidance clarifying that EUA status does not prohibit public and private employers from mandating vaccines. Last month, a federal court in Houston rejected the argument that the COVID-19 vaccine’s lack of full approval by the FDA precluded a Texas hospital from mandating that employees be vaccinated against COVID-19. In addition, since December of last year, the Equal Employment Opportunity Commission (EEOC) has taken the position that federal discrimination laws do not prevent employers from mandating their employees be vaccinated against COVID-19 so long as they make reasonable accommodations for those employees who have a disability or sincerely held religious beliefs which would prevent the employee from receiving the vaccination.

While recent federal guidance has given a virtual green light to employers looking to require vaccinations for employees, some employers remain hesitant to implement such mandates given the recent trend among certain states to pass legislation limiting vaccine passports or other inquiries about vaccination status. However, thus far, the bulk of the state legislation prohibiting inquiries concerning vaccine status does not apply to private sector employers’ attempts to require that its employees be vaccinated. For example, Arkansas, Indiana, Utah and Oklahoma have passed laws prohibiting public schools or government entities from mandating vaccines. Florida and Texas passed laws extending restrictions to private businesses, but those restrictions are limited to inquiries concerning customers’ vaccination status – not employees’ vaccination status. Thus far, only Montana has passed a law banning employers from discriminating against employees based upon vaccination status.

In sum, employers can legally require employees to be vaccinated against COVID-19 so long as they: (1) make reasonable accommodations for employees with disabilities and religious beliefs which prohibit the vaccination; and (2) don’t run afoul of state law restrictions prohibiting vaccine mandates for employees (which so far exist only in Montana).

What Legal Concerns Exist When Confirming an Employee’s Vaccination Status?

In addition to concerns about the legal permissibility of vaccine mandates, many employers are also asking about the legal issues that may be triggered when they attempt to confirm an employee’s vaccination status.

EEOC guidance confirms that an employer can inquire about an employee’s vaccination status and request proof of that status without running afoul of the Americans With Disabilities Act (ADA). However, follow-up questions concerning why an employee has or has not been vaccinated and medical records beyond proof of vaccination (e.g. a vaccination record) could be construed as a disability-related inquiry triggering further obligations under the ADA. Therefore, employers need to be careful to keep their inquiries and requests for proof concerning vaccination limited to whether or not the employee has been vaccinated. In addition, employers also have to be careful when handling vaccine records. The EEOC has also advised that employers keep records concerning an employee’s vaccination status (i.e. copies of a vaccination card) confidential and in a file separate from an employee’s personnel file.

Lastly, while employers may disclose general information to the public about employee vaccinations, such as the percentage of employees vaccinated in a workplace or the fact that an employer has a policy requiring employees be vaccinated, employers should be cautious not to disclose information about an individual employee’s vaccination status.

What Happens if an Employee Refuses to Be Vaccinated?

The last and, perhaps most pressing questions employers are asking, is what options are available if an employee refuses to be vaccinated after being required to do so?

Given the recent federal guidance discussed above, an employer is on relatively firm legal grounds to make vaccination a condition of employment. This means an employer can terminate most at-will employees who refuse to comply with vaccine requirements (and who are not subject of a collective bargaining agreement or bound by other contractual conditions) as long the employer makes accommodations for those individuals with a disability or religious issue and there are no state laws prohibiting vaccine requirements.

However, some employers may wish to resist firing employees who refuse vaccination. In that case there are alternatives available which would allow employers to require vaccination, but not necessarily fire employees who refuse. For example, the federal government and the other larger employers who implemented vaccination requirements last week went short of making vaccination a condition of employment and, instead, took a “make life difficult” approach for unvaccinated employees. Those employers did not say they would fire employees who refused to be vaccinated, but instead would require them to undergo weekly testing and more stringent safety standards, with the hope that reluctant employees would be encouraged to get vaccinated. In addition to requiring unvaccinated employees to undergo regular testing and more rigorous safety standards, some employers have prohibited non-vaccinated employees from accessing the physical workplace, attending in-person meetings or engaging in business travel.

Time will tell whether vaccine requirements for employees will be the “new normal” for all employers. But, as we head into the Fall, the trend appears to be heading in that direction and employers should start grappling with these and other legal questions regarding employee vaccine requirements.

White and Williams Labor and Employment attorneys continue to provide guidance to employers on issues related to the COVID-19 pandemic including employee vaccine requirements and other return to work issues.