The short answer is yes. Because this issue is developing, states are looking to Federal agencies (such as the Equal Employment Opportunity Commission) for guidelines. The EEOC has opined that they can require vaccination so long as a private employer also makes exceptions for individuals under the ADA, Title VII of the Civil Rights Act, and accommodations for religious exemptions.
However, many private employers have taken a less forcible approach. Rather than mandating vaccines, private employers are reaching out to employees with incentives to encourage vaccines so as not to mandate them. This is permissible, so long as the incentives are not coercive.
Employers of emergency personnel are taking a different approach. Employers who employ emergency personnel, such as hospital workers, have now begun to mandate vaccination as a requirement for maintaining employment. In response to this mandate, some employees have initiated lawsuits against their employers challenging the mandate. So far, none of these cases have been fully litigated. One argument advanced by the employees centers around the position that the vaccine remains in emergency authorization status. Conversely, the argument advanced by the employer is that COVID 19 is a direct threat to all employees in the workplace, and they need to ensure the safety of employees and customers or clients. The EEOC has taken the position that the vaccine’s status with the FDA does not affect an employer’s mandate.
Because rules involving COVID mandates are constantly evolving, it is important to confirm the most recent recommendations from the EEOC and their adoption by an employer and jurisdiction. Currently, the EEOC has determined that private employers are within their rights to mandate that employees be vaccinated. While the litigation employees have filed against employers for these mandates continues to make its way through the judicial system, it appears, for now, the guidelines from the EEOC are being upheld. Although it is expected additional House Bills will be submitted in an attempt to protect employers from lawsuits by employees and employees from having to provide proof of vaccination or from being terminated for not being vaccinated, any additional Bills will likely suffer the same fate.
Written by Theresa L. Teixeira.