Numerous legal challenges for employers considering making COVID-19 vaccine mandatory
Bryan A. Schivera
This is an editorial by lawyer Bryan A. Schivera, partner in the tax and corporate department of the law firm Savannah Oliver Maner. His main areas of practice are business law and tax law.
In light of the rapid spread of the delta variant and the full FDA approval of the Pfizer COVID-19 vaccine, many employers are currently implementing or considering a vaccine mandate. Such a mandate takes the form of a requirement that employees be vaccinated or be fired. Giants like Goldman Sachs, Microsoft, Facebook and Google have unveiled such measures.
Governance in this area is a complex mix of federal and state laws, with guidelines densely articulated by federal, state, and local health officials. With this in mind, employers who are considering implementing an immunization mandate should know the basics and consult with an attorney when creating a written policy prior to implementation.
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In accordance with guidelines issued by the US Equal Employment Opportunity Commission on May 28, 2021, there is no federal law preventing an employer from requiring its employees to be vaccinated against COVID-19. One of the first legal tests of such a warrant took place in Texas, where 117 hospital workers filed a lawsuit to block the hospital’s vaccination warrant.
In dismissing the case, Federal Judge Lynn Hughes concluded that instead of being coercive, the warrant was the employer’s attempt to keep its staff and patients safe. Notably, one of the complainants’ arguments was based on the fact that the vaccine was “experimental” because the lawsuit was filed before full FDA approval of the Pfizer COVID-19 vaccine.
Exceptions to these rules exist but require an analysis of federal law. Although vaccination warrants are legal, they are subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. In certain circumstances, these federal laws require an employer to provide reasonable accommodation to employees who, because of a disability (ADA) or sincere religious belief, practice or observance (Title VII), do not get vaccinated against COVID-19.
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Additional analysis should be done on a case-by-case basis in assessing specific accommodation requests. Such an analysis involves the cost and the difficulties for the employer to grant such accommodations as well as concerns about safety at work.
At the state level, Governor Brian Kemp signed an executive order on May 25, 2021 which, among other things, provides that no state agency can require proof of COVID-19 vaccination as a condition of employment by the State, doing business with the State or enjoying other rights granted by the State. Accordingly, Georgian law does not prevent private employers from requiring vaccines. In fact, only Montana has enacted such a ban on private employers to date.
There has also been confusion regarding an employer’s right to inquire about an employee’s immunization status. An employer can apply without violating the ADA’s ban on disability-related investigations. However, further questions about their motives or beliefs could constitute a violation of federal law. So while employers are free to ask employees whether or not they have been vaccinated, they should be careful not to ask more probing questions or to store this information.
When it comes to HIPAA, the law is not involved as it generally does not apply to employers or employment records, but only to covered entities – healthcare providers, health plans, clearinghouses. health care providers and, to a lesser extent, their associates.
In addition to mandates, some private employers offer incentives to encourage employee vaccination. An employer rewarding employees who show proof of third-party vaccination is not breaking federal law.
However, if an employer offers an incentive for employees to receive an employer-administered vaccination, additional testing is required. In this case, inducement is only allowed if it is not “to the point of being coercive”. Indeed, a strong incentive could pressure employees to disclose protected health information.
There are a variety of legal and practical factors that need to be taken into account when an employer decides to implement a workplace vaccination mandate. While there is a level of uncertainty in the legal landscape surrounding warrants, sadly, that is unlikely to change anytime soon. To avoid breaking the law, employers would be wise to consult a lawyer to successfully implement its vaccination mandate.
Contact Schivera at [email protected]