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.
Regarding government employees, the Maryland Department of Health initially issued an opinion in February of 2021 indicating that while the State did not have a COVID-19 vaccination mandate, they strongly encouraged it. However, on August 19, 2021, Governor Hogan announced that effective September 1, employees in 48 state facilities will be required to show proof of vaccination or adhere to strict face-covering requirements and submit to regular, ongoing COVID-19 testing.
Legislatively, Maryland had two bills pending: House Bill 1171, the Maryland Employee Protection Plan for Vaccine Refusal, prohibiting an employer from terminating an employee for refusing the COVID-19 vaccine. This bill provides employees who refuse vaccination waive the right to file a civil action against their employer if they contract COVID-19 during the course of employment. The second is House Bill 1150. This would prohibit an individual from being required to provide medical information, including proof of vaccination, to obtain employment, or to travel. Both bills were referred to the Health and Government Operations Committee on February 8, 2021, and heard on March 9 and 17, 2021; however, as of today, there has been no enactment.
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 associate Theresa L. Teixeira.