September 09, 2021

Bryan Schivera Published in Savannah Morning News: Employers are Urged to Proceed Cautiously with Vaccine Mandates

Bryan A. Schivera

In light of the rapid spread of the Delta variant and full FDA approval of the Pfizer COVID-19 vaccine, many employers are either now implementing or considering a vaccine mandate. Such a mandate takes the form of a requirement that employees become vaccinated or face termination. Corporate giants such as Goldman Sachs, Microsoft, Facebook and Google have unveiled such measures. Governing this area is a complex mixture of federal and state law, with densely worded guidance from federal, state, and local health officials. With this in mind, employers planning on implementing a vaccine mandate should know the basics and consult an attorney in the creation of a written policy prior to implementation.

Pursuant to guidance issued by the U.S. Equal Employment Opportunity Commission on May 28, 2021, there is no federal law which prevents an employer from requiring employees to be vaccinated for COVID-19. One of the earliest legal tests of such a mandate occurred in Texas, where 117 hospital workers sued to block the hospital’s vaccine mandate. In dismissing the case, Federal Judge Lynn Hughes concluded that rather than being coercive, the mandate was the employer’s attempt to keep its staff and patients safe. Notably, one of the plaintiffs’ arguments was based on the vaccine being “experimental”, as the lawsuit was filed prior to full FDA approval of the Pfizer COVID-19 vaccine.

Exceptions to these rules do exist but require an analysis of federal law. While vaccination mandates are legal, they are subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act. Under certain circumstances, these federal laws require an employer to provide reasonable accommodations for employees who, because of a disability (ADA) or a sincerely held religious belief, practice, or observance (Title VII), do not get vaccinated for COVID-19. Additional analysis must be performed on a case by case basis in evaluating specific accommodation requests. Such analysis involves the cost and hardship on the employer for granting such accommodations as well as workplace safety concerns.

On the state level, Governor Kemp signed an Executive Order on May 25, 2021 which, among other things, provides that no state agency can require proof of COVID-19 vaccination as a condition of employment by the state, conducting business with the state or enjoying other rights provided by the state. Accordingly, Georgia law does not prevent private employers from mandating vaccines. In fact, only Montana has enacted such a ban on private employers to date.

There has also been confusion regarding an employer’s right to inquire about an employee’s vaccination status. An employer may ask without running afoul of the ADA’s prohibition on disability-related inquiries. However, additional questions as to their motivations or beliefs could be a violation of federal law. Thus, while employers are free to ask employees whether or not they have been vaccinated, they need to be careful about asking more probing questions or storing this information. With regard to HIPAA, the Act is not implicated because it generally does not apply to employers or employment records but only covered entities – health care providers, health plans, health care clearinghouses, and to a lesser extent, their business associates.

In addition to mandates, some private employers offer incentives to encourage employee vaccination. An employer rewarding employees who show proof of vaccination from a third party does not run afoul of federal law. However, if an employer is offering an incentive to employees for receiving a vaccination administered by the employer, additional analysis is required. In this instance, the incentive is only permitted if it is not “so substantial as to be coercive”. This is because a significant incentive could pressure employees to disclose protected medical information.

There are a variety of legal and practical factors that must be addressed when an employer decides to implement a workplace vaccine mandate. While there is a level of uncertainty in the legal landscape surrounding mandates, that is unfortunately unlikely to change any time soon. To avoid running afoul of the law, employers would be wise to consult an attorney to successfully implement any vaccine mandate.

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