Exclusive Interview with Condon McGlothlen, Partner, Seyfarth Shaw LLP

Can Federal Law Prohibit Public/Private Entities From Requiring Covid Vaccination?

 

"Personal objection to getting vaccinated is not a protected status, and generally does not protect employees from discharge or other adverse action if the employer’s policy requires vaccination", says Condon McGlothlen, Partner, Seyfarth Shaw LLP.

In an exclusive interview with HR.com, Condon talks about mandatory vaccination laws, health, safety, and legal implications employers and employees need to be aware of while mandating the Covid-19 vaccine, and more.

Excerpts from the Interview:

Q: As mandatory Covid-19 vaccines become more widespread, what can employers do if workers refuse to get vaccinated?

Condon: If an employer has a lawful policy or other requirement saying employees must be vaccinated as a condition of continuing employment, it may discharge employees for refusing to comply, subject to a few qualifiers. First, employers in Montana are prohibited from doing this. Montana law says employers cannot discriminate against employees based on their vaccination status. Terminating those who are unvaccinated obviously runs afoul of that law. Montana’s law also prohibits employers from asking employees if they have received a vaccine approved for Emergency Use Authorization (EUA) only. 

Asking employees about their vaccination status is part and parcel of any mandatory Covid-19 vaccine requirement. This particular Montana provision no longer applies to the Pfizer-BioNTech vaccine (now fully approved by the FDA), but still applies to Moderna and Johnson & Johnson’s vaccines. Because the employer doesn’t know which vaccine an employee may receive, FDA’s recent action as to the one vaccine does not change Montana’s de facto prohibition against vaccine mandates by private employers.
 

Second, everywhere else, if the employer wants to require that employees be vaccinated against Covid-19 as a condition of continued, it must have a process for employees to request accommodation of disability or religion-related objections to C-19 vaccines. Whether such a request should be granted needs to be considered and evaluated by employers case-by-case, in compliance with the Americans With Disabilities Act and Title VII of the Civil Rights Act under federal law, plus any applicable state and local anti-discrimination laws.

Some employers may opt for progressive discipline instead of immediate termination, if employees fail to comply. For example, the employer could give the non-compliant employee a 1-week suspension, so the employee can further consider getting vaccinated.

Other employers are requiring that employees who refuse to get vaccinated must be tested for C-19 once or twice weekly for the indefinite future. This presumably would address and resolve the employee’s objection to getting vaccinated. However, employers must be careful not to assume that this will, in all instances, suffice as a reasonable accommodation. If the employee works remotely apart from the pandemic and will likely never meet in-person with colleagues or customers, it is unclear whether either mandatory vaccination or testing is lawful.  

Q: On what grounds can employers legally ask employers to get vaccinated, and not worry about violating any law?

Condon: Outside Montana, employers can require that employees get vaccinated if they either (i) must perform their job at a company location (and must therefore interact in-person with co-workers), or (ii) must visit customers or vendors in-person as part of their job.

Q: Can you explain some of the state laws that employers should be aware of when they mandate vaccinations for employers or terminate them based on that mandate?

Condon: Montana is the main one. Most other states have anti-discrimination laws protecting individuals with disabilities and employees’ religious beliefs. Most state laws in these regards generally track federal law, however, and thus have limited independent significance. As always, California is interesting and unique. For example, California law defines protected religious beliefs more narrowly than does Title VII. However, if a California employer rejects an employee’s request for religious accommodation on undue hardship grounds, the employer’s burden of proving undue hardship is higher (i.e., more difficult) under California law than it is under Title VII.

Q: How should employees deal with a situation where they are unable to substantiate if an employee was infected with Covid-19 previously, but the employee opts out of vaccination?

Condon: That depends on both the employer’s policy and current medical knowledge, which is changing constantly as regards Covid-19, including its different variants. Initially, it was thought those who had been infected would likely develop antibodies making them immune to the virus. However, this view is largely outdated and eclipsed by the Delta variant and other recent developments. 

Q: What if an employee objects to vaccination for personal reasons unrelated to a medical condition or religious belief?

Condon: Personal objection to getting vaccinated is not a protected status, and generally does not protect employees from discharge or other adverse action if the employer’s policy requires vaccination. That is not to say an employer that wants all employees vaccinated should fire everyone who has a personal (and not a disability or religious-based) objection. For one thing, labor markets remain tight across many industries. Employers may have a hard time finding replacements for employees who refuse to get vaccinated for personal reasons. Despite possible employer costs involved with testing, some employers may conclude it makes business sense to allow testing instead of discharging those who refuse vaccination for personal reasons. 

Q: What protections do employees have for raising concerns about an employer’s vaccination program?

Condon: Again, outside Montana, the main employee protections are the ADA and Title VII -- plus state and local anti-discrimination protections -- for those with disability or religious-based concerns. Whether some of those laws protect pregnant employees concerned about getting vaccinated is currently unclear. The EEOC’s guidance has said all along that pregnancy-related concerns are protected under Title VII. However, EEOC has also said all along it will look to the CDC for direction as regards Covid-19 and what steps employers can and should take. The CDC changed its view regarding pregnancy and now generally recommends vaccination for pregnant women, subject to any particular/unique concerns from a woman’s personal health care provider. It is thus unclear whether EEOC will hew to its original stance on pregnancy. As of today, however, that remains EEOC’s official stance. State law on whether pregnancy protections continue to apply is likewise indeterminate in most jurisdictions at this point. 

Q: If an employee suffers from an adverse reaction to the vaccine, are paid sick leave benefits available?

Condon: This depends on the terms of the employer’s paid sick leave policy and any applicable state laws (there are some). For example, Massachusetts currently requires that employers provide paid sick leave benefits for adverse vaccine reactions, although this particular state law requirement may expire in a month. 

Q: What are the [sic] other health, safety, and legal implications must employers and employees be aware of mandating the Covid-19 vaccine?

Condon: Most legal restrictions on private employers requiring vaccination and enforcing that requirement are discussed above. Health, safety, and legal drivers behind employers deciding to mandate vaccination include: OSHA requirements -- state as well as federal; possible tort liability if an unvaccinated employee transmits the virus to a third party (although, many states have laws limiting such liability); workers’ compensation costs; business disruption and other costs of unvaccinated employees contracting the virus and becoming seriously ill, unable to work for a time and required to quarantine; health care costs, especially if hospitalization is required; and the possibility of employee deaths -- all now considerably heightened by the Delta variant. 

Though vaccination does not appear quite as effective against that variant as against others and the virus at its inception, those who are vaccinated face substantially less risk of serious illness, hospitalization and death than those who are unvaccinated, at least for the 6 - 9 months that current vaccines appear to remain effective without a booster shot.
 

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