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COVID-19 Vaccine Considerations for Employers Part 1

For months now in the United States, anyone 12 years old or older has been eligible to receive a COVID-19 vaccination. The latest data from the Mayo Clinic shows that 49% of the population is fully vaccinated and 56.5% has received at least one dose. With these vaccination numbers, businesses across the country are opening back up to both their employees and customers. Opening up fully means some added risk to both your customers and employees. With mask mandates lifted in many areas, how can you keep your customers and employees safe?

One option is to require your customers to show proof of vaccination before entering your business. However, many states, including Florida, now prevent businesses from requiring their customers to provide proof of having received a COVID-19 vaccination. So, what is the proverbial next best option for your business? Is it requiring your employees to be vaccinated? Possibly, but there are many factors to consider before choosing this option.

Requiring your Employees to be Vaccinated may be Legal.

In June, a Texas federal court was the first to rule that a mandatory workplace COVID-19 vaccination policy was lawful. Over one hundred employees of Houston Methodist Hospital sued to challenge their employer’s mandatory vaccination policy, claiming that the policy constituted wrongful termination under Texas law and violated federal law due to the COVID-19 vaccines’ emergency use authorization (EUA) status. The court held that the hospital’s mandatory vaccination policy did not constitute wrongful termination under Texas law because Texas law only protects employees who are fired for refusing to commit an illegal act at the request of their employer. Further, the court held that the vaccination policy did not violate any federal laws because federal law only requires the U.S. Secretary of Health and Human Services – not private employers – to ensure the “potential benefits and risks of use” and “the option to accept or refuse administration of the product.”

Additionally, in late May, the U.S Equal Employment Opportunity Commission (EEOC) released technical assistance related to the pandemic, addressing questions under federal equal employment opportunity (EEO) laws:

  • Federal EEO laws do not prevent an employer from requiring employees from being vaccinated for COVID-19 before being allowed to physically return to work.

  • Employers must make sure their policies comply with the ADA and Title VII of the Civil Rights Act of 1964.

  • Employers may offer incentives to employees to provide documentation of vaccination, and employers must keep that vaccination information confidential.

  • Employers may administer the vaccine and offer incentives to employees to receive the vaccine, but the incentives may not be coercive.

  • Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and the benefits of vaccination.

Although a mandatory COVID-19 vaccination policy for in-office employees appears to be legal, there are some considerations that employers should keep in mind. There is other federal litigation involving mandatory vaccination policies, and the Texas Federal Court ruling is up on appeal. Further, some states’ wrongful termination laws may not allow certain employers to let go of unvaccinated employees.

Additionally, as stated above, employers must make sure their policies are compliant with the ADA, which prohibits discrimination against disabled persons, and Title VII of the Civil Rights Act of 1964, which prohibits discrimination on account of one’s religion, among other things. If an employee cannot receive the vaccine because of a health or religious concern, an employer requiring its employees to be fully vaccinated before physically returning to work would have to provide a reasonable accommodation to allow the employee(s) to safely come back to work. This might include providing the unvaccinated employee with PPE or even requiring a negative COVID-19 test.

Since Requiring Your Employees to be Vaccinated Seems to be an Option, is it the Best Option for You?

Following the ruling by the Federal Court in Texas and the issued guidance from the EEOC, you seemingly can require your employees to be vaccinated before physically returning to work. Now, you must ask should you require your employees to be vaccinated?

If you decide to require vaccinations for in-office employees, you will have to consider if the vaccination policy may violate your state’s wrongful termination laws. The policy will also have to reasonably accommodate those with health concerns and religious hesitancies. You will also have to be on notice if appeals courts strike down other employers’ mandatory vaccination policies for their employees.

If you do not want to jump through those hoops, but still want to make sure your employees are healthy, therefore ensuring your customers are healthy, there are other options. You can still offer incentives to your employees for receiving the vaccine. You can also inform your employees on the vaccine’s benefits. Educating them and answering questions may be all it takes for a more skeptical employee to receive the vaccine.

Either way, implementing a COVID-19 vaccination policy can be a tricky subject as you prepare to open your doors for your employees to return to the office. If you have any questions regarding a COVID-19 vaccine policy for your business, we strongly recommend that you consult with an experienced employment attorney so that you best understand your options as you welcome your employees back to the office.

This article was drafted by Rick Duarte and W. Austin Engelbrecht. Rick is the owner of The Duarte Firm, P.A., where he focuses his practice on business law. He received his law degree from the Emory University School of Law and has been named a “Rising Star” in Business Litigation by Florida Super Lawyers for 2016 – 2021. Rick also serves as general counsel to emerging and medium-sized businesses, guiding clients through corporate governance, risk management issues, and strategic decisions where business and law intersect.

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