August 13, 2021
By Anne E. Baggott
More employers are starting to mandate vaccination against COVID-19 as a condition of employment. The majority of employers still are only encouraging or incentivizing vaccination, but the trend may be changing.
The surge in COVID-19 cases caused by the delta variant seems to be the main driver of the policy change. Many executive and human resource leaders believe the risks of the new variant outweigh the risks of requiring vaccination for their workforce. The healthcare industry is leading the push for mandatory vaccination, but employers in other industries are becoming more willing to mandate the shot due the spread of the new variant and recent agency and court guidance:
On August 12, 2021, Supreme Court Justice Amy Coney Barrett left in place Indiana University’s vaccine mandate for students, faculty and staff. A group of students asked Justice Coney Barrett to block the mandate by an emergency appeal, which was denied without comment.
The Occupational Safety and Health Administration’s (OSHA) updated guidance on mitigating and preventing the spread of COVID-19 states most employers don’t need to take protective measures at work where all employees are fully vaccinated.
A July 6 opinion from the Department of Justice’s Office of Legal Counsel states public and private entities may require vaccination, even while vaccines have Food and Drug Administration (FDA) Emergency Use Authorization status.
Where employees have sued their employers for wrongful termination after refusing to be vaccinated, at least one Texas court has dismissed the lawsuit. The court found the vaccine requirement was not unlawful or coercive.
Where an employer has a mandatory vaccination policy, the employee can ask for an exemption for religious or medical reasons. Employers need to provide a reasonable accommodation, so long as it does not pose an undue hardship on the company’s operation. As with all accommodation requests, what is reasonable will depend on the employee’s request and the needs of the business.
Employers have tough decisions to make to keep employees safe while navigating the patchwork of ever-changing federal and state laws and public-health agency guidance. Employers should consult with a trusted legal advisor when considering a vaccination mandate.