An Update on COVID-19 Vaccine Mandates
Happy Wednesday, compliance friends, I hope you are all having a great week! In case you need it: we’re halfway to Friday; keep up the good work!
When the COVID-19 vaccines first became available under emergency-use authorization by the FDA, we received some questions about whether credit unions could require their staff to get vaccinated. It’s been a hot topic with people on both sides of the issue, and I’m not here to try to sway you one way or the other. However, if you’ve been keeping up with the news lately, you’ve probably seen some headlines regarding employers (companies and governments, alike) who are implementing vaccine mandates or regular COVID-19 testing for their employees. And it may have made you wonder: can they even do that? In light of the fact that many businesses are working on their plans to bring employees back to the office in the near future, here is some information that may be helpful.
The Equal Employment Opportunity Commission (EEOC) provided Q&A guidance about the intersection of COVID-19, the ADA, the Rehabilitation Act, and Title VII of the Civil Right Act on May 28, 2021, stating that “the federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.” Section K of the Q&A covers all things vaccinations, including: clarification that, as with any other employment policy, employers that require employee vaccinations need to ensure that it is non-discriminatory both on its face and in practice (no disparate impact); the appropriate analyses and examples of reasonable accommodations for employees who do not get the vaccine due to disability or religious belief, practice, or observance; ways employers can encourage employees to be vaccinated without violating EEO laws; and whether employers may offer incentives for voluntary vaccinations.
These articles from WebMD and SheppardMullin provide a good breakdown of the topics discussed in the EEOC guidance, and also call attention to areas that may be open to interpretation, and thus potential litigation. Keep in mind that this guidance is from a federal perspective, so there may also be state law implications and considerations. This article from Husch Blackwell provides an ongoing look at state-level legislation regarding employer-mandated vaccinations (first published March 5, 2021; updated July 1, 2021).
So, now that we know that employers may legally require their employees to be vaccinated (or provide reasonable accommodations, as described above), let’s take a look at which industries and employers have begun to do so.
The first vaccine mandates were for healthcare workers, which were called for by the American Medical Association, the American Nursing Association, and 54 other medical and allied health care groups. Next up was the financial services sector, with Morgan Stanley and BlackRock announcing vaccine mandates. Then came other industries, such as tech, retail, entertainment, and transportation, among others. As of July 29, 2021, all federal employees and contractors must either attest to vaccination or submit to masking, social distancing, and weekly testing. Even earlier, the Department of Veterans Affairs announced that it would mandate vaccines for its front-line workers.
Lastly, in news that spread throughout the hospitality sector, Danny Meyer, of Shake Shack fame, announced that not only would he require staff at his restaurants to be vaccinated, but indoor diners will also be required to show proof of vaccination.
While the list of employers instituting vaccine mandates looks to be growing by the day, there are some that have decided against a mandate for various reasons, including awaiting full FDA approval of the vaccines, state law, or personal autonomy. Just because federal law states that an employer can mandate the COVID-19 vaccine, does not mean it must, and the decision is currently left to each business to make the determination best suited to its needs, and in compliance with the relevant state laws on the matter.