A National Question: Can employers make COVID-19 vaccination mandatory?

 

Can employers make COVID-19 vaccination mandatory?
by Mae Anderson, May 27, 2021
Yes, with some exceptions.

Experts say U.S. employers can require employees to take safety measures, including vaccination. That doesn’t necessarily mean you would get fired if you refuse, but you might need to sign a waiver or agree to work under specific conditions to limit any risk you might pose to yourself or others.

“Employers generally have wide scope” to make rules for the workplace, said Dorit Reiss, a law professor who specializes in vaccine policies at the University of California Hastings College of the Law. “It’s their business.”

Rules will vary by country. But the U.S. Equal Employment Opportunity Commission has allowed companies to mandate the flu and other vaccines, and has indicated they can require COVID-19 vaccines.

There are exceptions. For example, people can request exemptions for medical or religious reasons. Some states have proposed laws that restrict mandating the vaccines because of their “emergency use” status, but that may become less of an issue since Pfizer has applied for full approval and others are likely to follow.

How employers approach the issue will vary. Many might not want to require vaccination because of the administrative burden of tracking compliance and managing exemption requests, noted Michelle S. Strowhiro, an employment adviser and lawyer at McDermott Will & Emery. Legal claims could also arise.

As a result, many employers will likely strongly encourage vaccination without making it mandatory, Strowhiro said.

Walmart, for example, is offering a $75 bonus for employees who provide proof they were vaccinated.

Can Employers Make COVID-19 Vaccinations Mandatory?

National Law Review, Monday, August 2, 2021

Now that the vaccines for COVID-19 are widely available in the United States, many schools are preparing for in-person instruction in the fall and more workplaces are starting to move away from remote work and bring their employees back into the office. Of course, many essential workers have remained in their workplaces throughout the pandemic. In order to protect their employees and customers from the pandemic virus, many employers in both the public and private sectors are requiring employees to get vaccinated before returning to work or as a condition of remaining at work. New York City has announced that all government employees need to get vaccinated by September 13, 2021, or else be subject to weekly COVID-19 testing. President Biden announced a similar mandate – vaccine or testing – for federal government employees and contractors on July 29, 2021. The proliferation of employer vaccine mandates across the country has spawned a number of legal challenges by employees who want to keep their jobs but do not want to get vaccinated, and by unions who do not think such changes should be implemented unilaterally by employers. This blog explores some of the legal issues that federal and state courts will be addressing as these cases proceed.

Claims based on right to refuse “unapproved” COVID-19 vaccines

Plaintiffs in several lawsuits have argued – thus far unsuccessfully – that employers cannot impose vaccine mandates because the COVID-19 vaccines have only received Emergency Use Authorizations from the Food and Drug Administration, thus rendering the vaccines “unapproved” and “experimental.” Employees at Houston Methodist Hospital in Texas (Bridges v. Houston Methodist Hospital), Dona Ana Detention Center in New Mexico (Legaretta v. Macias), and Los Angeles County schools in California (California Educators for Medical Freedom v. Los Angeles Unified School District) have all argued that their employers’ requirements that they get the COVID-19 vaccine or face termination amounts to compelling them to participate in a medical experiment in violation of their rights under federal law.

Plaintiffs in all three cases point to 21 U.S.C. § 360bbb-3, a law governing the Secretary of Health and Human Services’ ability to grant Emergency Use Authorization to drugs or medical devices that have not received full approval from the FDA. The law says that the HHS Secretary must establish conditions to ensure that anyone who administers a product under an Emergency Use Authorization must inform patients “of the option to accept or refuse administration of the product, [and] of the consequences, if any of refusing administration of the product,” 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III). The plaintiffs claim that this law gives them a right under federal law to refuse the vaccine, and that any employer mandate to the contrary is unenforceable. Some of the plaintiffs point to other sources of law to claim a right to refuse vaccination. For instance, the New Mexico plaintiffs pointed to Griswold v. Connecticut and Roe v. Wade, two famous Supreme Court cases holding that the constitution recognizes a right to privacy that encompasses access to contraception and abortion. They argue that this same right prohibits the Dona Ana Detention Center from terminating their employment if they refuse the vaccine. The California and Texas plaintiffs pointed to the Nuremberg Code of 1947, international laws adopted in the wake of the Holocaust that prohibit forced medical experimentation without informed consent. The plaintiffs basically have argued that the employers’ vaccine mandates are tantamount to the horrifying medical experiments conducted by Nazi doctors on concentration camp prisoners.

There is little chance that these arguments will be met with any sympathy by courts. Contrary to the claims of the plaintiffs, the Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission both recognize that federal law does not prevent employers from imposing vaccine mandates. The CDC website says: “The Food and Drug Administration (FDA) does not mandate vaccination. However, whether a state, local government, or employer, for example, may require or mandate COVID-19 vaccination is a matter of state or other applicable law.” Similarly, the EEOC says that “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” so long as employers allow for legally required reasonable accommodations for employees with disabilities or religious beliefs that do not allow for vaccinations. Furthermore, the Supreme Court first held more than 100 years ago, in its 1905 decision in Jacobson v. Massachusetts upholding a state law requiring smallpox vaccination, that the Constitution does not provide a right to opt-out of vaccine mandates in the midst of a public health crisis. Accordingly, lower courts are unlikely to hold that there is a constitutional right to opt-out of employer vaccine mandates in the midst of the COVID-19 pandemic.

The only court to weigh in on one of these cases has shown no patience for these arguments. On June 12, 2021, the United States District Court for the Southern District of Texas dismissed all of the claims brought against Houston Methodist Hospital, bluntly stating that the plaintiffs’ efforts to portray themselves as unwilling participants in medical experiments misstate the facts, and that any analogy to Nazi experimentation in concentration camps is “reprehensible.” Looking at Section 360bbb-3, the Court held that the statute only regulates the conduct of the HHS Secretary and does not create any rights that a private individual can enforce in a lawsuit. Furthermore, the Court noted that none of the plaintiffs are actually being coerced into taking the vaccine. Rather, the Hospital gave them the option to refuse the vaccine and told them the consequence of their refusal, namely, that they would be terminated from their job. “If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. This is all part of the bargain.”
Claims based on religious and disability discrimination

Even though employees will likely not be able to show that employer vaccine mandates violate federal law, particular employees may be able to show that they have a right to opt-out of an employer vaccine mandate based on their religious beliefs or medical conditions. For example, in Coronado v. Great Performances Artists As Waitress Inc., Antonio Coronado, a service worker, brought claims under the New York State and New York City Human Rights Laws in state court, claiming his employers’ decision to place him on furlough until he got vaccinated violated his “religious and ethical convictions” and discriminated against him “based upon his physical condition.” There are likely to be similar lawsuits brought by employees all over the country under federal, state, and local anti-discrimination laws. Although the court has not yet weighed in on Mr. Coronado’s complaint, the EEOC has provided guidance that will help show how such claims are likely to fair under the federal laws prohibiting employment discrimination on the basis of religion, Title VII of the Civil Rights Act of 1964, and disability, the Americans with Disabilities Act. Check out our blog post, “COVID-19 Vaccinations: What Employees and Employers Need to Know” to learn more.
Other vaccine mandate developments to come

Although most vaccine mandate litigation is focused on federal law concerning Emergency Use Authorization and anti-discrimination law, some opponents to vaccine mandates are taking other approaches. For instance, a case filed in the United States Court for the Northern District of Illinois argues that the employer’s imposition of a vaccine mandate – even one that allows accommodations for employees’ religious beliefs and disabilities – alters the terms and conditions of employment in violation of Collective Bargaining Agreements entered into by the plaintiff-union. See International Brotherhood of Teamsters, Local 743 v. Central States, Southeast and Southwest Areas Health and Welfare Pension Fund. This claim sidesteps any argument about the vaccine approval process as well as the employer’s legitimate interest in promoting workplace safety. Instead, the claim characterizes the employer’s vaccine mandate, which requires unvaccinated employees to use all of their paid time off and then face discipline (up to and including termination) unless and until they get vaccinated, as imposing a new restriction on the union members’ employment without going through the negotiation process required by the agreements and federal law protecting union rights. For instance, the National Labor Relations Act requires an employer to collectively bargain in good faith with the union over subjects that directly impact “rates of pay, wages, hours of employment, or other conditions of employment.” 29 U.S.C. §§ 158(a)(5); 159(a). The Teamsters Union argued that the employer’s unilateral imposition of the vaccine mandate creates a new “condition of employment,” and requirements on how employees must use their paid time off unlawfully circumvented the mandatory bargaining process. It remains to be seen how the court will handle this claim, but other unions with members opposing vaccine mandates are likely to bring similar claims if the Teamsters Union has any success here.

Some state legislators opposed to vaccine mandates are circumventing courts altogether and are proposing state laws that outright prohibit COVID-19 vaccine mandates. While many such laws are still under consideration, two states have successfully enacted laws curtailing employers’ ability to require their employees to get vaccinated. On April 28, 2021, Arkansas enacted Act 977, which prohibits any state or local agency or entity from requiring a COVID-19 vaccine as a condition of employment, education, entry to facilities, receipt of services, or issuance of a license, certificate, or permit. Ark. Code § 20-7-142. Montana went even further. As of May 7, 2021, it is unlawful in Montana for any private or government employer to discriminate against any employee based on the employee’s vaccination status or possession of an “immunity passport,” although health care facilities are allowed to inquire about employees’ vaccination status and implement reasonable accommodations to protect employees and patients from any dangers posed by non-vaccinated employees. See Mont. Code Title 49, Chapter 2, Part 3. It remains to be seen if employers or employees seeking a safe workplace will challenge these state laws in court, and how courts will weigh an employer’s interest in workplace safety against the state’s interest in regulating commercial activity and protecting individuals against employer restrictions.

As more employers demand their employees get vaccinated and courts weigh in on existing lawsuits, the tactics of legal resistance to vaccine mandates are sure to adapt and change.

U.S. Department of Justice Gives Go-Ahead to Mandatory COVID-19 Vaccines in the Workplace

Monday, August 2, 2021

As employers nationwide have begun to implement mandatory COVID-19 vaccine requirements in the workplace, legal questions have been presented as to whether these vaccine requirements are legally permissible under various laws. While the EEOC has issued guidance that generally permits mandatory vaccine requirements in the workplace so long as reasonable accommodations are offered for those with disabilities or sincerely held religious beliefs, questions still remained as to whether mandatory workplace vaccine requirements were permissible under other laws, such as the Food, Drug and Cosmetic Act (FDCA), given the Emergency Use Authorization (EUA) process.

DOJ’s July 6, 2021, Memorandum Opinion now opines that mandatory workplace vaccine policies are permissible under the FDCA. Specifically, Section 564 of the FDCA permits employers to impose the COVID-19 vaccination as a condition of employment even when the vaccine is subject to EUA. This opinion applies to both public and private employers outside of the context of the armed forces.

The DOJ emphasized that vaccine mandates are not coercive: They do not strip employees of their rights to refuse a vaccine or not. Although Section 564 states that recipients must be informed of “the option to accept or refuse administration” of the vaccine, Section 564’s mandates are merely informational. As with other conditions of employment, discipline up to termination can be an acceptable consequence for employee refusal to adhere to an otherwise valid employer vaccination policy. Employees can freely choose to accept or refuse a COVID-19 vaccine but will need to work elsewhere if they refuse vaccination against the employer’s policy.

It is important to note that DOJ’s opinion is narrow, only addressing the permissibility of the COVID-19 vaccine under one federal statute. Many other state and local laws may apply, such as state and local equal employment opportunity laws and regulations. In addition, there are a multitude of practical considerations in mandating vaccination.
Practical Considerations for Employers:

Employers must decide how to ensure a safe and compliant workplace while considering employee rights and concerns about COVID-19 vaccinations. The following are some considerations that are important for employers to address in light of the DOJ guidance:

1. Determine whether to mandate the COVID-19 vaccine or implement other avenues for increasing vaccination rates, such as incentivization;

2. Consider instituting or updating company-wide COVID-19 vaccination policies;

3. Review prior EEOC guidance to determine how to accommodate employees with disabilities or religious objections to the vaccine;

4. Review current policies and procedures to ensure proper handling of any accommodation requests;

5. Keep employee vaccination status as confidential medical information;

6. Monitor CDC and OSHA websites to keep current with guidance;

7. Update COVID-19 policies to determine which employees will be subject to masking and social distancing in light of the CDC Guidance;

8. Keep informed of any local public health rules and regulations requiring masking;

9. Employers maintaining workplaces with employees subject to collective bargaining agreements must consider any bargaining obligations with the Union prior to instituting or modifying vaccination policies;

10. Train supervisors and managers on COVID-19 policies.

DOJ Releases Memorandum Supporting Employers’ Right to Mandate Vaccines Approved by the FDA for Emergency Use

NLR, Wednesday, August 4, 2021

Growing numbers of private businesses and public entities have announced policies requiring employees and others to be vaccinated against COVID-19 as a condition of employment or as a condition of access to facilities or services. In response to this trend, some have argued that employers and other organizations may not lawfully mandate COVID-19 vaccines that have been only approved for use under an emergency use authorization (EUA) as opposed to full approval by the U.S. Food and Drug Administration (FDA). Commentators and legal advisors have been divided over whether the EUA approval precludes mandating the vaccine. On July 6, 2021, the Office of Legal Counsel of the U.S. Department of Justice (DOJ) issued a memorandum opining that private businesses and public entities are not prohibited from mandating COVID-19 vaccines that have only received approval for use under an EUA. The memorandum, “Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use Authorization,” helps settle any remaining legal debate and affirms that employers may lawfully require employees to receive COVID-19 vaccinations.
Background and Prior Guidance

COVID-19 hit the shores of the United States in January 2020. Almost immediately, universities, hospitals, and media began to anticipate the development and deployment of effective vaccines. In May 2020 came the announcement of Operation Warp Speed—a public-private partnership between the U.S. government and private companies to develop vaccines to combat COVID-19. Then, in June 2020, the FDA announced that any vaccine would need to be at least 50 percent effective in combating COVID-19 before receiving approval from the agency. Vaccines with effective rates of over 90 percent were announced in late 2020. Shortly thereafter, the FDA issued EUAs for the Pfizer-BioNTech and Moderna vaccines, followed by the Johnson & Johnson/Janssen vaccine. Just as quickly, employers began considering whether to require employees to be vaccinated as a condition of employment or as a condition of performing work on-site at company facilities.

The question of whether an employer may require employees to get vaccinated is not new. For years, some employers in healthcare and other industries have required employees to receive vaccines against influenza and viruses in connection with their employment. In that context, the U.S. Equal Employment Opportunity Commission (EEOC) recognized an employer’s right to insist on vaccinations. For example, in 2009, in connection with the H1N1 pandemic, the EEOC issued guidance entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” There, the EEOC addressed the extent to which the Americans with Disabilities Act (ADA) and other federal employment laws restricted an employer’s ability to mandate influenza vaccines. The guidance, which has since been revised to address COVID-19, posed the question, “May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?” In answering “No,” the EEOC made the obvious observation that under the ADA and Title VII of the Civil Rights Act of 1964 reasonable accommodation must be provided to employees, absent undue hardship, for their disabilities and religious beliefs, practices, or observances.

The EEOC again addressed the issue in an informal discussion letter dated March 5, 2012. In that letter, the EEOC was asked to advise on the extent to which Title VII required giving exceptions to an influenza vaccine for healthcare workers who requested exemptions due to religious beliefs. The EEOC again affirmed that an employer could require an influenza vaccine in certain circumstances, but that Title VII and other federal employment laws required providing reasonable accommodation based on religious beliefs, disability, and pregnancy. The EEOC’s ultimate position was that employers should encourage employees to receive an influenza vaccine rather than require vaccination.

In March 2020, in light of the COVID-19 pandemic, the EEOC updated its pandemic guidance. The EEOC reiterated that any vaccine requirement must provide for exemptions or other reasonable accommodations for employees who cannot get vaccinated due to a disability or a sincerely held religious belief, practice, or observance, absent an undue hardship. At the time the EEOC released its updated pandemic guidance, the agency noted, “there is no vaccine available for COVID-19.” The EEOC continued to opine that “ADA-covered employers should consider simply encouraging employees to get [a vaccine] rather than requiring them to take it.”

As the COVID-19 pandemic gained ground, the EEOC issued more detailed technical guidance entitled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The EEOC has updated the technical guidance multiple times, most recently on June 28, 2021. In that guidance, the EEOC confirmed that, subject to reasonable accommodation provisions under the ADA and Title VII, “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”

As a result of this guidance and the increasing burden of COVID-19 in the workplace, a number of employers have contemplated or put into place policies requiring that employees get vaccinated against COVID-19, either as a condition of employment or as a condition of returning to the office for in-person work activities. This policy has been more prevalent among hospitals and other healthcare providers. Similarly, a number of colleges and universities have announced requirements for staff and students to get vaccinated, and a growing number of federal and state agencies are requiring employees to get vaccinated.
The Dispute Over EUA-Approved Vaccines

Even before COVID-19 vaccines were released, political and legal challenges to mandatory vaccines developed, many of which were based on the notion that employees and others should not be compelled to receive any COVID-19 vaccine that had only received EUA approval from the FDA. For example, Montana enacted House Bill 702, which prohibits discrimination based on vaccination status and provides that “[a]n individual may not be required to receive any vaccine whose use is allowed under an emergency use authorization or any vaccine undergoing safety trials.” Multiple lawsuits have also been filed against employer vaccine mandates, though none have been success as of yet. One such lawsuit is Bridges v. Houston Methodist Hospital, which was filed in the U.S. District Court for the Southern District of Texas by employees of a hospital after the hospital issued a requirement that all employees must get vaccinated against COVID-19 as a condition of employment. In the lawsuit, the employees claimed that requiring them to receive the COVID-19 vaccine (or risk being discharged) violated numerous laws including: (1) section 564 of the Food, Drug, and Cosmetic Act (FD&C Act) (the EUA provision); (2) FDA regulations that require informed consent before human subjects may participate in human trials; and (3) the Nuremburg Code. Other lawsuits in the United States have similarly argued against mandatory vaccine policies based on the notion that the COVID-19 vaccines are “experimental” absent full FDA approval.

The legal challenges based on the EUA status of COVID-19 vaccinations arise from a misinterpretation of the relevant provisions of the FD&C Act. In 2004, the U.S. Congress amended the FD&C Act to allow for EUA approvals as a way to more rapidly deploy protections and countermeasures against chemical, biological, nuclear, or radiological threats. The statute provides that in connection with an EUA approval, the secretary of the U.S. Department of Health and Human Services must establish certain conditions on an EUA “to protect the public health” and ensure that “individuals to whom the product is administered are informed … of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” Some have argued that this provision should be interpreted to mean that private and public entities may not mandate EUA-approved vaccines, while others have argued that the statute refers only to health consequences and/or that the FDA does not have the authority to regulate the employment consequences imposed by an employer due to an employee’s refusal to comply with a mandatory vaccine policy. In other words, the FD&C Act may require that vaccine providers and administrators advise recipients of their right to refuse the vaccine and that they will not suffer any healthcare consequences for doing so, but there is a compelling argument that nothing prohibits an employer from conditioning employment on an employee’s choice to get vaccinated.

The July 26, 2021, DOJ memorandum addresses the argument. There, the DOJ notes that the EUA provision requires informed consent from those receiving the vaccine and that the EUA approval given to the currently available COVID-19 vaccines requires that recipients receive an FDA-approved “Fact Sheet for Recipients and Caregivers,” which states: “It is your choice to receive or not receive the … COVID-19 Vaccine.” In assessing whether the FD&C Act and the fact sheet language prohibit mandatory vaccine policies, the DOJ concluded that “[the EUA provision] concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.” The DOJ further reasoned:

Indeed, if Congress had intended to restrict entities from imposing EUA vaccination requirements, it chose a strangely oblique way to do so, embedding the restriction in a provision that on its face requires only that individuals be provided with certain information (and grouping that requirement with other conditions that are likewise informational in nature). Congress could have created such a restriction by simply stating that persons (or certain categories of persons) may not require others to use an EUA product.
Key Takeaways

The DOJ memorandum is helpful to employers contemplating mandatory vaccine programs. While the DOJ memorandum is not binding on courts and does not carry the weight of law, it nevertheless affirms the interpretation offered by many that the EUA status of COVID-19 vaccines does not preclude a private or public employer’s ability to mandate that employees get vaccinated. Rather, as noted in EEOC guidance, federal law does not prohibit mandating vaccines, provided employers comply with the requirements of federal employment laws, such as the “direct threat” and reasonable accommodation provisions of the ADA and Title VII.

Employers seeking to mandate COVID-19 vaccines may also want to take into account any restrictions arising from applicable state laws, as some states have passed or are considering legislation that would nevertheless restrict an employer’s ability to mandate vaccines. Employers may also wish to carefully consider the practical and legal implications of ADA and Title VII restrictions and assess whether their organizations have in place effective and compliant processes for identifying and addressing reasonable accommodations.

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