Mandating COVID-19 Vaccines for Employees: Just Because You Can (Maybe), Doesn’t Mean You Should

As discussed in an earlier post, adopting a mandatory vaccination policy for employees is not a simple decision. Among the many factors to consider is the potential risk of legal action arising under federal laws such as the Americans With Disabilities Act (ADA) or the National Labor Relations Act, as well as state-law challenges alleging public policy violations or wrongful termination of employment. Recently, some employers have decided to require COVID vaccines for employees, citing Equal Employment Opportunity Commission (EEOC) Updated Guidance in support of this policy.  Many other employers are still considering how to proceed. Despite the EEOC’s position that an employer may enact a mandatory vaccination policy for all of its employees physically entering the workplace, mandatory vaccine policies are not without risk of unintended, negative consequences for the organization.

Employers are strongly encouraged to take account of the process for reasonable accommodation that may apply under the ADA and be prepared to respond to an employee who objects to receiving the COVID-19 vaccine either on medical grounds or due to a sincerely-held religious practice or belief. Also, employers should be aware that, regardless of your policy provisions, several states and localities require paid or unpaid leave related to an employee’s receiving or recovering from COVID-19 vaccinations.

EEOC’s most recently updated guidance recognizes the potential that employers may violate other laws when adopting mandatory vaccine policies. Of particular importance is the fact that several states have issued executive orders or have passed legislation prohibiting employers from requiring employees to take the COVID vaccine, at least prior to full FDA approval.[1] Legislation is being considered in a number of other states that would limit or prohibit an employer’s ability to require employees to be vaccinated (or even disclose their vaccine status) and/or to protect those who refuse vaccinations. Likewise, multiple lawsuits are also pending in courts around the country.[2] The federal Food and Drug Administration (FDA) has also made clear that anyone may refuse a COVID-19 vaccination, and it is required that this information be disclosed. Given the politicization of the issue, employers requiring the vaccine should expect pushback.

The potential distraction from core business operations that may result from workplace disharmony over mandatory vaccine policies may be reason enough for employers to reconsider, especially while the labor market remains tight across the country.

Before adopting or continuing a mandatory vaccination policy, consider the following questions: 

1. Are you prepared to spend time and resources going through the accommodation process when employees request exemptions on medical or religious grounds?

2. Are you prepared to fire your favorite/best-performing/key employee(s) who decline the vaccine for reasons other than medical or religious belief? 

3. Could you quickly and easily hire replacements for employees who decline to comply with your mandatory vaccine policy?

4. How much time and effort are you prepared to spend in managing this policy and the public relations and workplace harmony issues that may result?

5. Are you prepared to devote considerable resources of time and money to defending your position if it results in litigation?

In light of this fraught landscape, employers are strongly encouraged to consider adopting a vaccine-encouraged (rather than mandatory) policy.

If you are considering a voluntary or mandatory vaccination policy, or if you have other employment/labor related questions, please contact Trish Lantzy at [email protected] or 804-683-1737.

A member of our Washington D.C.-based team, Patricia Lantzy is a highly skilled labor and employment attorney with almost 30 years of experience. Trish works with a wide range of clients, from individual executives and small businesses to the Fortune 500, on employment-related issues across the employee lifecycle, including recruiting, hiring, workplace harmony and leave issues, performance and discipline/discharge, corporate reorganizations and reductions in force.

[1] EEOC has implicitly recognized that there may be a legal basis for employees to challenge the legality of their employers’ mandatory vaccination policy based on the COVID vaccine’s emergency use authorization (EUA) status. The COVID vaccine has not yet received full FDA approval, and its present EUA status is being raised in vaccine-related policy challenges and employment litigation.

[2] One such case that has received national attention is Bridges et al v. Houston Methodist Hospital et al, Case No. 4:21-cv-01774 (S.D. Tex. June 12, 2021), filed by a group of 117 hospital employees opposing their employer’s policy requiring them to be vaccinated against COVID-19 or have their employment terminated. The case was originally filed in state court and alleged public policy violations. The hospital removed the case to federal court and moved for dismissal; in granting that motion on June 12, the judge declined to find any basis in support of the employees’ objections. The dismissal was immediately appealed, and the case is now pending before the U.S. Court of Appeals for the Fifth Circuit.