August 23, 2021
Labor & Employment Alert
Labor & Employment Alert
Increasing numbers of employers are reconsidering vaccination mandates—we highlight legal concerns that private employers must assess as they weigh their options.
As the Delta variant of SARS-CoV-2 (COVID-19) continues to wreak havoc around the country, particularly for the unvaccinated population, more and more employers are reconsidering vaccination mandates.
Even the federal government recently announced that it will require vaccination or regular testing for employees. States like New York and California have announced similar requirements for state employees and health care workers. More and more companies in various industries have also recently announced that they will require vaccines for their workforce. Under the Occupational Safety and Health Act, employers have a duty to keep employees safe, including from COVID-19.
Vaccination mandates have also picked up speed after some recent legal decisions. The Department of Justice released a slip opinion finding that Section 564 of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bbb-3, which authorizes the Food and Drug Administration to issue an “emergency use authorization” (EUA), "does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.”
In addition, courts to date have backed employer mandates in large part. In a recent federal court decision, Bridges v. Houston Methodist Hospital, Docket No. 4:21-cv-01774 (S.D. Tex. Jun 01, 2021), a judge dismissed an action against a hospital requiring vaccines for all workers, subject to medical or religious exemptions. The decision has been appealed. While not legal precedent, which other judges must follow, the Bridges case is the first case upholding an employer’s vaccine mandate as lawful under federal and Texas law. In another recent decision, Klaassen v. Trustees of Indiana University, the U.S. Court of Appeals for the Seventh Circuit upheld a lower court decision rejecting a request by a group of students to enjoin and stop Indiana University from imposing a vaccine mandate that also had exemptions for religious beliefs or medical conditions. While the decision focused on arguments raised by students against the University’s vaccine mandate, many of the arguments could apply similarly in the employment context. The courts in both Klaassen and Bridges followed Jacobson v. Massachusetts, a U.S. Supreme Court precedent from 1905, holding that a state may require the smallpox vaccine.
Before a private employer considers vaccine mandates for its workers, however, there are several primary legal considerations.
Finally, the above list is not exhaustive. Depending on the jurisdiction, various other issues could arise. Employers also should note that public health guidance and laws relating to COVID-19 vaccinations continues to develop, and so any mandatory vaccination program should continue to follow all developments, even after implementation.
Once an employer has decided to mandate vaccines, it must decide how to verify an employee’s vaccination status. There is a spectrum of options.
For the last three choices, employers should maintain the confidentiality of the documentation, and the information should be shared only on a need-to-know basis. These general considerations are also subject to state and local laws that may require or prevent employers from taking actions. For example, Los Angeles County, Washington, DC, and San Francisco have implemented indoor masking for all people, regardless of vaccination status. Some states like Alabama and Florida have passed laws that prevent anything akin to a “vaccine passport” in certain circumstances. Employers will need to verify and ensure compliance with the requirements of state and local laws before implementing a vaccine mandate.
Employer-mandated vaccines appear to be the latest trend, but before following suit, employers should analyze the available options, based on their own operations, business model, and jurisdictions and other considerations.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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