By Ehsan Tabesh, Partner, Fisher Phillips
President Joe Biden announced sweeping new mandates that will require all federal employees and onsite contractors to be vaccinated against the coronavirus or to submit to regular testing, social distancing, mask-wearing, and travel restrictions. The new directive is part of a larger push to increase vaccination rates as the Delta variant of the coronavirus fuels a new wave of infections nationwide. Although the mandate is limited to federal workers, administration officials hope that the new policy directives will set the groundwork for private sector companies to follow suit.
The Biden administration’s announcement follows guidance issued by the Equal Employment Opportunity Commission (EEOC) in May that federal equal employment opportunity laws do not prevent public and private employers from requiring employees physically entering the workplace to be vaccinated, so long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act, Title VII, and other Equal Employment Opportunity considerations. The EEOC guidance also specifies that federal laws do not prevent or limit employers from offering incentives for employees to be vaccinated, provided that the incentives are not coercive.
The Department of Justice (DOJ) recently chimed in, as well. In a July 26, 2021 opinion from the Office of Legal Counsel (OLC), the DOJ concluded that the COVID-19 vaccine’s “emergency use authorization” status does not prohibit public and private entities from imposing vaccine requirements. According to the DOJ, although recipients of the “emergency use” vaccine must be informed of their option to refuse the vaccine, this does not prevent public or private entities from requiring the vaccine as a condition of employment, to attend a university, or to participate in events. The OLC notes that the mandated use of the vaccine is permissible because the individual may still refuse the vaccination but will simply have to face the possible consequences of refusal, including finding new employment. Although OLC opinions are binding on only federal government agencies, they can carry significant weight with judges and courts due to the office’s reputation and status within the federal government.
In the healthcare setting, the Occupational Safety and Health Administration’s Emergency Temporary Standard provides a more specific set of directives. The ETS requires covered healthcare employers to adopt a detailed COVID-19 plan that minimizes the risks of transmission and strongly encourages vaccinations by requiring healthcare employers to provide reasonable time and paid leave to each employee to receive the shot and to recover from any side effects. There are also required safety and screening measures, including the monitoring of all clients, patients, residents, and delivery people entering any setting where direct patient care is provided, the obligation to provide personal protective equipment, and a mandate that healthcare providers must require each employee to promptly notify it of when the employee is COVID-19 positive or suspected to have contracted the disease.
The new wave of decisions and directives from the federal government provides employers considering vaccine mandates support against claims that such a mandate is prohibited. Just last month, a federal court in Houston rejected a lawsuit against Houston Methodist’s vaccine requirement, after citing EEOC and FDA guidance. But still, even as employers and particularly hospitals appear to be on the firm legal ground implementing vaccine mandates, there is no discounting the controversy and legal risks associated with vaccine mandates.
For example, there is a significant concern of pushback by unions and organized labor groups. The Biden administration’s new federal workers vaccinate requirements prompted the Federal Law Enforcement Officers Association, which represents more than 26,000 federal offices, to criticize the policy as a “clear civil rights violation”. So too did the American Postal Workers Union. There has also been a recent division between the AFL-CIO, the nation’s largest labor federation, which fully supports mandatory vaccines, and one of its largest members, the American Federation of Teachers, which has opposed any plan that doesn’t leave the choice of vaccinations to workers and unions.
Employers considering vaccine mandates are also preparing for a wave of unreasonable accommodation and disability discrimination claims from employees who may choose to refuse mandates on medical grounds. For each such employee, the EEOC’s updated guidance explains that employers will likely have to assess whether the unvaccinated employee poses a direct threat to the health and safety of the employee or others in the workplace, based on “a reasonable medical judgment”. Among other factors relevant to determining whether to mandate a vaccine for an employee, the employer may need to evaluate information about the employee’s health status, the type of work environment, such as whether the employee works alone or with others, the frequency and duration of direct interaction with others, and the level of community spread at the time of the assessment.”
As infection numbers from the Delta variant continue to increase, the direct threat analyses will generally provide employers stronger grounds to mandate vaccinations for their workforce. With that said, the EEOC guidance notes that even if an employer determines that an unvaccinated employee would pose a direct threat, an assessment must still be conducted of whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat, such as a temporary job restructuring of job duties, a transfer to a different position, or modification of a work schedule or shift assignment.
Overall, healthcare employers must remain nimble in their constant evaluation of these issues, particularly as the next wave of the pandemic unfolds. Thankfully, though, the federal government is expected to continue to issue updated guidance and directives on COVID-19 that employers can use to plan and communicate their policy changes.