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vaccine requirement

Employers Can’t Require Vaccinations. For Now.

American employers are caught between a needle and a hard place. Many feel they can’t safely reopen the office back to full capacity without their employees being fully vaccinated. But they also know that they can’t exactly require employees to be vaccinated. Conflicting regulatory protocols for vaccine mandates and passports at the state, local, and federal levels have businesses across the country assessing options with apprehension. Out of time with no clear guidance, employers are putting their best foot forward. 

Can employers require their employers to be vaccinated? Can anyone? That’s the legal question hanging over much of the United States right now. The Occupational Safety and Health Administration (OSHA) and the Center for Disease Control (CDC) have provided little guidance on the issue. Requiring vaccines requires a way to establish whether someone has been vaccinated, guidance the CDC has thus far refused to issue. Even doing that is proving to be a thorny issue. States like Florida, Arizona, South Carolina, Texas, and others have banned vaccine passports. Banning vaccine passports doesn’t prevent employers from requiring the vaccination, it just makes determining who isn’t vaccinated harder. 

Lawsuits have begun. Students at Indiana University are suing the schools over its recent COVID-19 vaccine requirements. Similar situations are playing out at the Los Angeles Unified School District, a detention center in New Mexico, a sheriff’s department in North Carolina, and even a Houston hospital that employs 26,00 health workers. The lawsuits have a similar theme: the vaccine cannot be required because it’s only been authorized for emergency use. Legal experts have questioned the basis of the argument, but the threat of lawsuits is giving HR and legal departments pause. Vaccination mandates have been commonplace in the office and public spaces for years used to combat measles, mumps, influenza, and other ailments. As long as the employers aren’t discriminating against an employee on the basis of their race, color, religion, sex, or national origin, employers have the legal authority to set rules in the workplace regarding vaccinations.

Houston Methodist, whose slogan is “Leading Medicine”, is leading the way in vaccine requirements for its employees. The hospital suspended 200 employees without pay for failing to get the vaccine, per requirements set by the hospital system. Of the suspended employees, 117 signed on to a lawsuit claiming requiring the vaccine turns them into ‘guinea pigs.’ Houston Methodist said Texas employment law only protects workers from termination if they refuse to commit a criminal act. Since receiving a vaccine is not a criminal act, requiring it is well within the employer’s right. US District Court Judge Lynn Hughes agreed with the hospital system. “Methodist is trying to do their business of saving lives without giving them COVID-19,” Hughes wrote in the dismissal of the lawsuit. “It is a choice made to keep staff, patients, and their families safer.” 

Plaintiffs have plans to file an appeal. Employees that hadn’t resigned were recently terminated by the hospital system.

“What is shocking is that many of my clients were on the front line treating COVID-positive patients at Texas Methodist Hospital during the height of the pandemic,” Jared Woodfill, an attorney representing the plaintiff, told KPRC. “As a result, many of them contracted COVID-19. As a thank you for their service and sacrifice, Methodist Hospital awards them a pink slip and sentences them to bankruptcy.”

The best legal guidance on the issue so far has come from the federal Equal Employment Opportunity Commission (EEOC), which said employers can legally mandate their employees be vaccinated before reentering the workforce as long as religious liberties and disability rights are not violated. Title VII of the Civil Rights Act of 1964 stipulates employers must accommodate religious beliefs. The Americans with Disabilities Act says employers can create a workplace policy that includes requirements that an individual does not pose a direct threat to the health or safety of the workplace. But if an employee can’t be vaccinated because of a disability, reasonable accommodations must be made. If reasonable accommodations aren’t possible, an employee can work remotely or take a leave of absence. Failing that, termination is the next option. Employers considering termination based on vaccination status should check to make sure they’re not violating other rights under EERO laws at the federal, state, and local levels. 

Employers may have plenty of legal backing to require vaccinations, as long as accommodations are made, but most are choosing to take a softer approach. The law remains unclear enough that most companies would rather not risk it. Companies are choosing to offer incentives to get vaccinated rather than termination letters should they refuse. For now, that seems to be working. Lawsuits, while highly publicized, have remained rare. Even in Houston Methodists’ case, plaintiffs represent less than 1 percent of the system’s workforce.

In late May the EEOC approved employers to offer limited incentives to employees who get vaccinated. As long as incentives aren’t large enough to be ‘coercive,’ businesses can offer employees perks and rewards for getting jabbed. The news was met well by the business community. Several businesses have already announced incentive plans. McDonald’s is offering workers four hours of PTO to get vaccinated. 

Employers are biding time. Lawsuits may work their way up to state courts. The basis of legal challenges to vaccine requirements will only last so long. When COVID-19 vaccines receive full authorization from the FDA, the sliver of legal standing where anti-vax activists are making their case will get even smaller. Soon employers, school districts, colleges, and other institutions will be able to require it, just as they currently do for a variety of other vaccinations. Moderna and Pfizer have already begun the processes towards full approval. Health experts hope full approval will drive vaccination rates even higher. Even if approval is likely, as experts predict, it is still several months off. 

Conflict isn’t good for business or productivity. Avoiding legal battles with employees is always the better option, even if an employer has the legal right to do so. For now, vaccines are strongly encouraged and reasonable accommodations are being made. As the legal world waits for clear direction, employers are hoping to get more workers vaccinated with honey than vinegar.

Associate Editor
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