In our classes at the University, we have been studying the legal, ethical and practical issues presented by the COVID-19 pandemic since its onset in March 2020. The pandemic has challenged our students to develop new ways to handle crisis management, business continuity, entrepreneurship, supply chain management and leadership.
One clear constant in the business world is change. How does business innovate, progress, and flourish in a world of an unprecedented global pandemic where there is no such thing as “business as usual,” and every nuance and need for change becomes politically charged?
In many instances, we have seen leadership, empathy, ingenuity and perseverance rise to the challenges created by the COVID-19 pandemic. Businesses and individuals found ways to cope with COVID-19 restrictions, and vaccines were developed in record time.
Still, controversy about COVID-19 precautions continues to proliferate across the nation, ranging from the efficacy of isolating at home and wearing masks to the reliability of the vaccines. The politicization of science and these safety protocols has raised issues for employers struggling with best practices for workplace management and safety.
COVID-19 vaccines are now available to everyone for free. However, there are still some people choosing to refuse vaccinations, which a growing number of companies are requiring as a condition of employment.
Can businesses lawfully require their employees to be vaccinated against COVID-19? Prevailing legal authorities say yes.
COVID-19 Requires a Plethora of Workplace Safety Measures
From the beginning of the pandemic, businesses have been obligated to observe a plethora of safety measures against COVID-19 transmission. Many businesses completely closed for months in 2020 or struggled to operate with remote workers under public stay-at-home mandates.
Organizations that remained open as essential businesses followed federal and state guidelines by implementing certain safety precautions. Those safety measures included using heightened daily cleaning protocols, mask requirements, reconfiguring workplaces for social distancing, courier and curb service, and handwashing stations.
Several Companies Are Already Mandating COVID-19 Vaccinations or Testing for Workplace Safety
When the COVID-19 vaccines became available, debate about accepting them arose in public discourse. The debate included whether or not employers could require COVID-19 vaccination as a condition of employment. Out of concern for the health and safety of their workforce and the public, the continuity of their businesses, and the increase of cases with the rise of the COVID-19 delta variant, many employers are requiring employee vaccination or regular COVID-19 testing and masks as a condition of employment.
This precaution has been especially critical for healthcare employers. For example, on April 1, 2021, Houston Methodist Hospital in Texas implemented a policy requiring its employees to be inoculated for COVID-19 and providing time for compliance. In May 2021, the hospital suspended 178 workers for refusing the vaccine.
Houston Methodist Hospital’s position is supported by the American Public Health Association. On July 21, 2021, 58 APHA members signed a “Joint statement in support of COVID-19 vaccine mandates for all workers in health and long-term care.” The statement affirmed that the COVID-19 vaccination mandates “are an essential policy to increase vaccination rates in health care and long-term care settings and protect the health care workforce and the patients and residents we serve.”
Similarly, Disney World has negotiated COVID-19 vaccination requirements for its union employees and requires non-union employees to be vaccinated by the end of September 2021. Disney’s Cruise Line has implemented a no-exception rule for vaccinations on Disney cruises, which means all employees and guests, including children, must be fully vaccinated to board ship.
Facebook, Google and Pacific Northwest National Laboratory are other notable examples of employers requiring their employees to get vaccinated. New York’s Union Square Hospitality Group will not serve any unvaccinated guests, as of September 7, 2021. Like at Disney, patrons must show proof of being “fully vaccinated” to be admitted to a restaurant.
Legal Authorities Support Vaccine Mandates
Some of Houston Methodist Hospital’s suspended employees (117) sued the hospital in federal district court in Bridges v. Houston Methodist Hospital and quickly lost their case. In dismissing the case, Federal District Judge Lynn N. Hughes ruled that the employees’ claims against the hospital for wrongful discharge and violation of their rights failed “as a matter of law.”
Other numerous legal authorities also support vaccine mandates. The Equal Employment Opportunity Commission has issued guidance that states employer requirements of the COVID-19 vaccine is allowed under the Americans with Disabilities Act.
The U.S. Supreme Court also has indicated its support of a COVID-19 vaccine mandate by its refusal to interfere with Indiana University’s requirement that its employees and students be vaccinated for COVID-19, unless exempted for religious or medical reasons. Those people who qualify for the exemption must wear masks and be tested twice a week.
In Klaassen v. Trustees of Indiana University, eight students argued the university’s mandate of COVID-19 vaccinations violated their constitutional right to substantive due process because it interfered with their ability to make their own medical decisions. The 7th Circuit Court of Appeals disagreed, noting that vaccinations are well-recognized public health measures and that the university must be able to “decide what is necessary to keep other students safe in a congregate setting.”
Furthermore, the 7th Circuit noted that the university provided for reasonable exceptions and that people not wishing to be vaccinated could “go elsewhere.” The Supreme Court declined to hear the case.
Lawfully Requiring Vaccinations to Prevent Disease Is Not New
Lawfully requiring vaccinations against contagious disease is not new. The Klaassen case mentioned a 1905 U.S. Supreme Court case about the Massachusetts smallpox vaccine mandate, a controversy with language remarkably similar to today’s public discourse about the COVID-19 vaccine. The State of Massachusetts mandated the smallpox vaccine as a public health necessity, with administration of the vaccine to be determined locally.
This mandate resulted in a court case, Jacobson v. Massachusetts, on the issue of the mandate violating a person’s individual liberty. Mr. Jacobson was criminally charged in Massachusetts for refusing the vaccine. The credibility of the vaccine was also challenged. The Court ruled in favor of Massachusetts under the state’s right to exercise its police power when necessary for public safety. The Court said:
“[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.….It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease and to render it less dangerous to those who contract it.…. The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone.”
The essence of the government’s exercise of its power for public safety is doing what is reasonable and necessary. The government has been requiring and supporting safety measures in public venues and of employers long before the COVID-19 pandemic.
This is the basis of the Occupational Safety and Health Administration’s huge compendium of workplace safety regulations. OSHA’s guidelines do not require that employers mandate the COVID-19 vaccine, but they do advise aggressive precautions to protect all employees. Under a recent Presidential order, OSHA will expand their guidelines with an emergency rule for large private employers.
President Biden’s recent orders implementing his COVID-19 Action Plan (“Vaccinating the Unvaccinated”) go further for certain employers, adding supporting weight to other employers desiring to mandate vaccination. The President’s orders require:
- For federal agencies and federal contractors, vaccination of all federal employees and employees of federal contractors
- For private employers of 100 or more employees, vaccination of employees (with employer paid time off to get the vaccination), or weekly COVID-19 negative testing of unvaccinated employees, pursuant to emergency rules to be issued by OSHA
- For most healthcare facilities that receive Medicare or Medicaid reimbursement, vaccination of all workers
The COVID-19 Vaccination Mandate Should Be Tempered with Reasonable Exceptions
As suggested in the President’s order for private employers and as demonstrated in Indiana University’s approach, a reasonable policy for employers mandating vaccinations includes a provision for exceptions, with a procedure for managing those exceptions so as not to compromise workplace or school safety. Reasonable exceptions for most workplaces are:
- Medical – Certain individuals may have valid medical reasons that contraindicate receiving the COVID-19 vaccine. An example could be a severe allergy to the vaccine. Medical certification could be used to support this exception.
- Religious – This exception requires something more than a denial to use the vaccine. Religious belief must be substantiated as a sincerely held larger commitment of faith that conflicts with receiving the COVID-19 vaccine.
- Mandatory testing and mask wearing – Employees who do not want to receive the COVID-19 vaccinations must provide a weekly negative COVID-19 test result and wear a mask.
- Remote work – Employers could arrange for employees to work remotely where remote work is reasonable for their job.
Employers such as healthcare facilities will have stricter policies about the placement of unvaccinated persons because of the heightened safety issues involved in dealing with trauma, injury, illness, patient care, and multiple potential COVID-19 exposure opportunities to both employees and patients. The Houston Medical Hospital case indicates that a court is very likely to side with the facility’s compelling health and safety interest in mandating that all workers be vaccinated.
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