As the pandemic days of Zoom meetings in pajama pants wind to a close (or so we hope), and more Americans return to their offices, the question on everyone’s mind is – Can employers mandate COVID-19 vaccinations? The not so short answer –yes for most but not every employee.
In December 2020, the EEOC (the federal Civil Rights agency) issued guidance recommending that employers encourage or even require COVID-19 vaccinations for their workers, as long as the employer complied with current workplace laws, most prominently Title VII and the Americans with Disabilities Act (the “ADA”). Under the ADA, employers are required to make reasonable accommodations for those employees with a disability which prevents them from getting the vaccine. Title VII requires accommodations for those with sincerely held religious beliefs that prohibit the vaccine. Those employees entitled to such reasonable accommodations could then be offered the option to wear a mask, work a modified shift, working in a socially-distanced area separate from other employees or other such accommodations that did not present an undue hardship on the operation of the employer.
In a landmark case that is setting precedent across the country, a Federal District Court in Texas confirmed the EEOC’s guidance, and ruled private employers have the right to require vaccinations in Bridges, et al v. Houston Methodist Hospital et al, Docket No. 4:21-cv-01774 (S.D Tex. Jun 01, 2021). The court dismissed a case filed on behalf of 117 employees of the Houston Methodist Hospital, where the policy required employees receive the COVID-19 vaccination as a condition of continued employment. In its decision, the court cited EEOC guidance, and opined workers “can freely choose to accept or refuse a COVID-19 vaccine; however, if [they] refuse, [they] will simply need to work somewhere else…Every employment includes limits on the worker’s behavior in exchange for his remuneration. This is all part of the bargain.” While the Plaintiffs appealed the dismissal to the Court of Appeals for the Fifth Circuit, as the first case heard involving COVID-19 vaccinations, the court’s ruling has profound implications moving forward.
However, despite the ruling, employers should be mindful of the legal nuances of the employee protections and accommodations provided under federal law. Maintain open lines of communication with employees regarding requests for reasonable accommodations afforded by both the ADA and Title VII. Employers should also be aware of and consider any relevant state or local employment laws that may prohibit mandatory vaccination policies.
And once you have considered all the legal issues, turn to practicality. How will your employees respond if vaccines are mandated? Will you lose staff you can’t afford to lose? On the other hand, will you lose customers if your staff is not vaccinated? There is no clear line for what is best for everyone.
As we navigate the long-reaching and unforeseeable consequences of the pandemic, and the changes its impact will have on the employer community, we encourage you seek competent legal advice and counsel to ensure you are in compliance.
Brody and Associates regularly advises management on complying with the latest state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
