Increasing COVID-19 Cases Accompanied by Increasing Employer Vaccination Policies: Can Employers Legally Require Employees to Disclose Vaccination Status and Get Vaccinated?

As the Delta variant of COVID-19 rapidly spreads across the country and offices continue to reopen with the close of summer, questions around mandatory vaccination policies are on the rise.  On the heels of federal and local public employers enacting workplace vaccination policies, many private employers are now deciding to enact mandatory vaccination policies or highly encouraged vaccination policies where employees who refuse to get vaccinated are required to undergo regular COVID-19 testing or follow other safety protocols in lieu of getting vaccinated.

The proliferation of these policies has resulted in various legal challenges brought by employees who want to keep their jobs, but do not want to get vaccinated, and by unions objecting to employers unilaterally adopting such policies.  As described below, none of these challenges have yet called into question an employer’s right to require its employees to get vaccinated, so long as certain accommodation requirements are met for those who cannot get vaccinated due to a disability or sincerely held religious belief.              

Inquiring About Vaccination Status

As we previously reported, on May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance regarding workplace COVID-19 vaccination policies and employee accommodations (the “Updated Guidance”).  The Updated Guidance confirms that an employer may ask employees whether they have received a COVID-19 vaccine and require proof of same.  That being said, the Updated Guidance notes that the information that the employee provides about vaccination status, such as a copy of a vaccination card, is considered medical information that must be maintained confidentially in a file separate from an employee’s personnel file.

Federal Guidance Regarding Mandatory Vaccination Policies

The Updated Guidance also confirms that an employer may enact a mandatory vaccination policy for all of its employees physically entering the workplace without running afoul of any federal equal employment opportunity laws, including the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), or the Genetic Information Nondiscrimination Act (“GINA”), so long as certain accommodations are provided to employees who cannot get vaccinated due to a disability or sincerely held religious belief.

The legality of mandatory vaccination policies under federal law is also supported by the Center for Disease Prevention and Control’s (“CDC”) website which now states: “The Food and Drug Administration (FDA) does not mandate vaccination. However, whether a state, local government, or employer, for example, may require or mandate COVID-19 vaccination is a matter of state or other applicable law” (i.e., such a policy is not an issue under federal law).

On July 6, 2021, the U.S. Department of Justice (“DOJ”) issued an opinion further confirming the legality of mandatory vaccination policies.  Specifically, the DOJ stated that the Food, Drug and Cosmetic Act does not prohibit employers from mandating vaccination for COVID-19, even while such vaccinations are available only through Emergency Use Authorizations (“EUA”).  As described below, this directly contradicts the legal basis underlying lawsuits challenging mandatory vaccination policies.

Potential Legal Challenges 

The Updated Guidance recognizes the potential that employers may violate other laws when enacting a mandatory vaccination policy.  The EEOC explicitly notes that all available COVID-19 vaccines were granted EUA status by the Food and Drug Administration (“FDA”) and directs those “seeking more information about the legal implications of EUA or the FDA approach to vaccines” to visit the FDA’s EUA page.  This reflects the EEOC’s implicit recognition that employees have filed cases challenging the legality of their employer’s mandatory vaccination policy based on the emergency nature of it.

Indeed, legal challengers to the propriety of a mandatory vaccine policy object to such policies because the EUA explicitly provides that individuals must have, “the option to accept or refuse administration of the [vaccine]” and be informed “of the consequences, if any, of refusing administration of the [vaccine] and of the alternatives to the [vaccine] that are available and of their benefits and risks.” For example, this argument has been used by employees at Houston Methodist Hospital in Texas (Bridges v. Houston Methodist Hospital), Dona Ana Detention Center in New Mexico (Legaretta v. Macias), and Los Angeles County schools in California (California Educators for Medical Freedom v. Los Angeles Unified School District).  Further, employees in some of these cases have asserted arguments under international and state law dealing with the right to privacy and prohibition of forced medical experimentation without informed consent.  Thus far, at least one court (Bridges v. Houston Methodist Hospital) has dismissed such arguments as meritless.

In addition to the lawsuits described above, unions have also started objecting to an employer’s unilateral decision to enact a mandatory vaccination policy.  For example, a local chapter of the Teamsters Union filed suit in federal court in Illinois asserting that the employer’s unilateral adoption of a vaccine mandate alters the terms and conditions of employment in violation of the applicable collective bargaining agreement (International Brotherhood of Teamsters, Local 743 v. Central States, Southeast and Southwest Areas Health and Welfare Pension Fund).  The suit is based upon the employer’s failure to first negotiate such a policy with the union as required by the collective bargaining agreement. Notably, however, the court in that case rejected the union’s request for a temporary restraining order to block the employer from requiring its employees to receive a COVID-19 vaccine.

Additionally, employers adopting mandatory vaccination policies should be aware that employees who are terminated for refusing to receive a COVID-19 vaccine with EUA status could try to pursue claims for wrongful termination in violation of public policy.

Overall, the viability of such challenges to mandatory vaccination policies remains to be seen.  While the general consensus is that private employers are permitted to enact mandatory policies or highly encouraged vaccination policies, employers deciding to enact such policies should be aware of the potential risk for legal challenges associated with that decision.  Further, employers should stay up-to-date with any applicable state or local law that prohibits employers from requiring that employees receive a COVID-19 vaccine.

Ultimately, mandatory vaccination policies or highly encouraged vaccination policies that require unvaccinated employees to undergo regular COVID-19 testing or take other safety measures are starting to become more prevalent.  As we previously reported here and here, there are many factors for employers to consider before enacting any type of workplace COVID-19 vaccination policy.  Importantly, employers choosing to enact a mandatory or encouraged vaccination policy should consult with counsel to ensure compliance with the applicable laws and guidance.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.