To Mandate or Not to Mandate (Vaccinations)? That is the Question.

Crowe & Dunlevy

In this final installment of our four-part series on the resurgence of COVID-19 workplace issues, we are taking a look at the legalities and practicalities of mandating the COVID-19 vaccine. A hot-button issue, vaccine mandates have not been as closely scrutinized since the smallpox outbreaks of the late 19th and early 20th centuries. Then, in 1905, the U.S. Supreme Court took up the matter in Jacobson v. Massachusetts and ruled that states could require citizens to receive the smallpox vaccine. More than 100 years later, businesses and employers across the country are considering similar questions as they contemplate mandatory employee vaccination policies in efforts to combat COVID-19.

While federal agencies such as the EEOC, OSHA and even the U.S. Department of Justice have issued guidance that endorses the right of employers to implement mandatory vaccination programs, employees who object to such mandates have sought relief from the courts, so far to no avail. In one well-known recent case out of the Southern District of Texas (Bridges et al v. Houston Methodist Hospital), a federal judge dismissed a lawsuit against a large health care system with approximately 26,000 employees that was filed by more than 100 hospital employees who opposed a mandatory employee vaccine policy. Shooting down each of the legal arguments raised by counsel for the employees, the judge’s ruling in that case pointed out that employees are free to choose whether or not to get the vaccine and that they are free to choose whether to work at a facility mandating the vaccination.

Businesses choosing to mandate employee vaccines must keep in mind the obligations to reasonably accommodate medical and religious exemptions under Title VII and the Americans with Disabilities Act (ADA). These laws require employers to provide reasonable accommodations to employees who cannot or will not get vaccinated due to a disability or a sincerely held religious belief, unless doing so would impose an undue hardship on the employer. Navigating employee exemption requests can be challenging, as the simple fact that an employee has made an exemption request does not mean that it is a valid request under Title VII or the ADA. Employers managing such accommodations requests should thus ensure a consistent approach to considering exemptions either by reviewing and responding from a single team (e.g., Human Resources) or by equipping managers and supervisors with the skills needed to effectively recognize and respond to a request for an exemption.

When going through the interactive process with employees who have requested this type of accommodation, employers should request documentation in writing of the condition or religious belief that prevents the employee from complying with the policy, determine whether the requested accommodation poses a “direct threat” to the health and safety of others or would pose an undue hardship to the employer and ensure that the decision and notification to the employee is documented in writing. While reasonable accommodations might include wearing a mask while at work, regular COVID-19 testing, or a telework assignment, reasonable accommodations may not be present in some situations.

It’s important to keep in mind that, while mandatory vaccine policies are legally enforceable, there are also non-legal considerations for businesses to contemplate. For example, many employers are currently facing a shortage of able workers. Businesses should consider whether implementing a mandatory vaccine policy might further limit the ability to find employees and the effect such a policy might have on both recruiting and retaining workers. Employers who find themselves facing those concerns certainly have other options that incentivize vaccination but fall short of a mandate, and examples are addressed in our recent advisory on vaccine incentives. Also, while we remain in a “high transmission” area as defined by the Centers for Disease Control and Prevention, a return to workplace masking and social distancing requirements, as well as the potential return to virtual work assignments, serve as alternatives to a vaccination mandate

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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