Gavel to Gavel: Some Employers Hesitant to Mandate Vaccines

Crowe & Dunlevy

Despite clear guidance from the Equal Employment Opportunity Commission and a federal court ruling giving the green light to employers that choose to mandate the COVID-19 vaccine, many employers remain hesitant to take that next step. The vast array of reasons for the apprehension include employee morale, risk of litigation, inconsistent treatment, compliance, confidentiality concerns and employee backlash, among others.

The EEOC enforces federal laws prohibiting discrimination in employment. EEOC guidance states that federal employment laws permit employers to require their workforce to be vaccinated for COVID-19 as long as employers comply with the Americans with Disabilities Act and Title VII of the Civil Rights Act. Therefore, employers must take into account the exceptions for employees who cannot get the vaccine due to disabilities and sincerely held religious beliefs.

As employers waited for the courts to weigh in, a federal judge in Texas did just that in a fiery opinion. On June 12, 2021, the first court ruling on mandatory COVID-19 vaccinations in the workplace came down.

In that case, a Houston hospital required its employees to get the vaccine or be terminated. A group of employees sought an injunction to stop the hospital from requiring the vaccine as a condition of employment. The employees sued on several grounds, one of which was that the vaccine was an “unapproved” medicine that the hospital was forcing them to receive. The employees claimed that they were being treated as “human guinea pigs.” The court disagreed.

While it is true that the FDA has not approved any COVID-19 vaccines and they are for emergency use only, the emergency use authorization requirements are not applicable to a private employer. The court also flatly rejected the employees’ argument that the vaccine requirement violated the Nuremberg Code. The employees compared the hospital’s threat of termination to the forced medical experimentation during the Holocaust, to which the court replied with fervor: “Equating the injection requirement to medical experimentation in concentration camps is reprehensible.” The court dismissed the employees’ claims.

Employers that intend to implement a mandatory vaccine policy should stay abreast of the guidance and laws in their jurisdiction. Implementation of the policy should take into account the employer’s type of business and workforce. Management should be ready to address employee relations issues that will no doubt accompany such a policy.

This article first appeared in The Journal Record on July 7, 2021, and is reproduced with permission from the publisher.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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