With the COVID-19 pandemic continuing to rage as a large segment of the American population refuses to be vaccinated, employers are increasingly concerned not only with the welfare of their employees and clients but also for potential business interruption. As such, employers may be wondering if they can require employees to get the COVID-19 vaccine as a condition of employment. Likely due to a concern with the legality, morality, or both of such a requirement, many employers may not be ready to implement vaccine mandates. In fact, a recent benchmarking survey revealed that 87.9 percent of employers do not plan on requiring workers to be vaccinated. On the other hand, 7.6 percent of employers surveyed have implemented (or are planning to implement) a vaccine mandate. It is anticipated that this percentage may increase once the COVID-19 vaccines obtain full FDA approval.
Workplace vaccination requirements are nothing new, especially in healthcare settings. For many years, hospitals and other healthcare providers have required employees to be vaccinated against illnesses such as influenza and Hepatitis B. These mandates sometimes prompted lawsuits, but usually, the employer prevailed. Most lawsuits did not involve large classes of employees suing; rather, a single employee would sue after being discharged for refusing the vaccine.
The first hospital system in the United States that implemented a COVID-19 vaccine mandate for its staff had 26,000 employees, only 153 resigned or were fired over the mandate. However, more importantly, it went from 85 percent of the staff being vaccinated to 100 percent, excluding about 600 employees who were exempted from the mandate due to religious or medical reasons (including pregnancy.) In recent weeks, other big health systems followed, and more are expected.
The trend of the COVID-19 vaccine mandate appears to be spreading beyond hospital systems, including senior living facilities. At the largest assisted living network in New England, the employees were told that they must be vaccinated- or exempted- by the end of July 2021. While hospitals and other healthcare facilities may have more substantial justifications than other types of workplaces for a vaccine mandate, many workplaces may still opt to have a vaccination mandate for purposes of enforcing different masking, social distancing and quarantining requirements. However, as more employers implement vaccine mandates, we are starting to see legal challenges to such mandates.
The first of its kind was the matter of Bridges v. Houston Methodist Hosp., 2021 U.S. Dist. LEXIS 110382 (S.D. Tex., June 12, 2021). One hundred seventeen employees from Houston Methodist filed a lawsuit over the health system’s COVID-19 vaccine mandate, arguing that it was illegal as it forced people to get an “experimental” vaccine in order to keep their jobs. Judge Hughes rejected the claim that the vaccine is "experimental and dangerous," insisting that Texas state law only protects employees from being fired for refusing to commit a crime and "receiving a COVID-19 vaccination is not an illegal act, and it carries no criminal penalties." In support of his rationale, he emphasized the nature of an at-will employment relationship, noting that “[i]f a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.” The ruling from Judge Hughes may not be the last we hear of this case as the plaintiffs plan on appealing.
Prior to Judge Hughes’ ruling, the only guidance as to the legality of a COVID-19 vaccine mandate came from the Equal Employment Opportunity Commission. In May 2021 it advised that employers could require their employees to be vaccinated as long as they provide reasonable accommodations for those employees whose disability or sincerely held religious belief precluded them from receiving the vaccine. The advisement of the EEOC remains a source of guidance for employers in preventing discrimination claims.
In general, a COVID-19 vaccine mandate does not run afoul of workplace anti-discrimination laws such as the Americans with Disabilities Act, the Genetic Information Nondisclosure Act and Title VII of the Civil Rights Act of 1964, as one's choice to be vaccinated is not a protected class. However, employers must provide reasonable accommodations for any worker who refuses a vaccine for religious or disability-related reasons unless the accommodation poses an undue hardship to the employer's operations. An employer's process of communicating with the employee about their individual situation will be important. Further, an employer's proactive efforts to suggest alternative accommodations may also reduce the risk of a discrimination claim. Accommodations might include allowing an unvaccinated employee to wear a face mask while at work, work a modified shift, get periodically tested for COVID-19 or work remotely. Interestingly enough, none of the plaintiffs in Bridges claimed a valid medical or religious belief as to the basis for their refusal to be vaccinated.
The lawsuit filed by Houston Methodist’s employees was the first but not the last lawsuit on a COVID-19 vaccine mandate. There since, suits have been filed against a North Carolina sheriff, a New Mexico detention center and a Los Angeles school. These lawsuits similarly argue that the vaccines are experimental since they only have emergency use authorization and, as such, cannot be mandated. While the recent ruling by Judge Hughes upholding a vaccine mandate may be indicative of future rulings in the state of Texas and possibly elsewhere in the country, employers must keep in mind that new state laws may impact the legality of a vaccine mandate. Several state legislatures are looking to pass laws making it unlawful to discriminate against an employee based on their vaccination status. For example, in May 2021, Montana passed a law making one’s vaccination status a protected class. The Montana law also prohibits employers from requiring an employee to disclose their vaccination status and bars employers from requiring employees to receive a vaccine that is subject to the FDA’s preliminary emergency use authorization status. It remains to be seen whether other states will follow Montana’s action and pass similar laws.
As the courts and state legislatures continue to define the legality of COVID-19 vaccine mandates, any employer contemplating such a mandate should take steps to protect itself from potential litigation. First and foremost, the employer must determine why they require that their employees be vaccinated. The employer must also determine whether there are employees who cannot be vaccinated due to valid religious or disability-related concerns and ensure there is a clear accommodation request process, as well as document all communications between it and the exempted employees in that regard. Additionally, given the fluid legal landscape of vaccine mandates, employers should consider consulting with a lawyer when determining and implementing any COVID-19 vaccine mandate.
Bridges v. Houston Methodist Hosp., 2021 U.S. Dist. LEXIS 110382, *3-5 (S.D.Tex., June 12, 2021).
Id. at 4.
Id. at *8.
Id. at *4.
See Id. at *3-8.