This article first appeared in the August 2021 issue of Security Business magazine. When sharing, don’t forget to mention Security Business magazine on LinkedIn and @SecBusinessMag on Twitter.
As America and the world continues on the path of recovery from the COVID-19 pandemic, we continue to face various challenges, including the proliferation of variants of the virus, vaccine hesitancy (or outright resistance), and willful misinformation.
In the view of the informed, vaccinations are key to our recovery; however, whether they can be mandated by employers remains an important question.
I addressed this issue several months ago in this column – noting that employers may require employees to get vaccinated from the COVID-19 virus, provided reasonable accommodations are made for those who cannot receive a vaccination due to a disability or a sincerely held religious belief (www.securityinfowatch.com/21206991). Because the facts are often ahead of the law, here is an update on the current status of the law in this area.
As of late June 2021, approximately 46.7% of the U.S population had been fully vaccinated against COVID-19. The majority of those individuals are over age 18 (as the vaccine is not yet authorized for children under 12). Among the vaccinated, rates of infection, hospitalization, and death from COVID-19 have dropped significantly. This is all great news.
However, too many Americans are not vaccinated or do not plan to get vaccinated – including many who have returned or may return to the workplace. So, as a matter of fundamental workplace safety, many employers must decide whether to mandate vaccinations.
When I wrote on this topic in Feb. 2021, the law was generally unsettled; however, the general rule – that employers must provide a safe workplace – suggested that employer-mandated vaccines may be permitted (and may be prudent to mitigate potential liability). Today, the issue remains open, is subject to various pending legislation, and may be litigated for years; however, preliminary indications suggest that some employers who mandate vaccinations are within their rights to do so.
Legal Challenges Unsuccessful
Other than reasonable accommodations for those with a disability or a sincerely held religious belief, multiple legal challenges to employer-mandated vaccination have failed.
On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) announced that the federal equal employment laws that it enforces do not prevent an employer from requiring that all employees physically entering the workplace be vaccinated for COVID-19. The EEOC was careful to note that its jurisdiction is not universal – i.e., it does not enforce all federal laws and it does not enforce state laws.
Nevertheless, some states have taken the same approach as the EEOC. For example, the state of New Jersey issued guidance recently which expressly allowed employers to mandate COVID-19 vaccinations. The only noted exceptions to this state-wide policy are “unless the employee cannot get the vaccine because of a disability, because their doctor has advised them not to get the vaccine while pregnant or breastfeeding, or because of a sincerely held religious belief, practice or observance.”
Consistent with the guidance from the EEOC and state of New Jersey, a federal court in Texas recently dismissed a lawsuit brought by employees of a hospital that mandated vaccines for employees. The employees argued that the mandate constituted a wrongful termination (an unlawful firing). Because Texas law only recognizes wrongful termination claims for employees who are fired for refusing to commit an act that carried criminal penalties to the worker – which vaccinations do not – the federal court disagreed.
While the ruling is under appeal and premised on a narrow point of Texas law, it indicates that some industries, such as healthcare, may be subject to stricter standards.
Notably, the position taken by the EEOC, the state of New Jersey, and one federal judge in Texas has little or no bearing on what state legislatures may do with this issue. In nearly every state, there is pending legislation directly or tangentially addressing vaccine mandates. In some states, proposals to prohibit employer-mandated vaccinations have little or no chance of becoming law. In other states, the pending legislation is more likely to pass, but also varies widely on who might be shielded from mandatory vaccinations and under what circumstances.
Some argue that because the vaccines are being given under an “Emergency Use Authorization” by the U.S. Food and Drug Administration (FDA), they cannot be mandated. Even if that argument gains traction in the courts or legislatures, it may soon be moot given that the initial safety record and efficacy rates of the vaccines are very favorable. Fully-approved vaccines may vest in employers greater authority to mandate their use.
Similarly, if some employees are reluctant to return to work because an employer has not mandated the vaccines, the risk of losing good employees could also provide a public policy basis for regulators, legislatures, and courts to defer to employer mandates.
Impact on Security Integrators
For security integrators, these issues can be even more complicated, because many of their employees do not sit in an office; rather, they are often dispatched to the facilities of their customers and interacting in the field with people well beyond their own company. Thus, not only do integrators have to consider whether their own employees should be vaccinated, but also whether their customers are mandating vaccines.
Whether your company mandates vaccines or not, you should remember that the medical choices of your employees should be maintained as confidential, that you must provide reasonable accommodation for disabilities and/or sincerely held religious beliefs, and that the decisions made by your company will have consequences for the health and safety of your workers and for the economic success of your company and our country.
Timothy J. Pastore, Esq., is a Partner in the New York office of Montgomery McCracken Walker & Rhoads LLP (www.mmwr.com), where he is Vice-Chair of the Litigation Department. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 551-7707 or by e-mail at [email protected].
