by Angela Courtwright, attorney, Ice Miller LLP
As famous Greek philosopher stated, “Change is the only constant in life.” This observation could not be truer today as the world begins to reemerge from the turbulence of the COVID-19 pandemic. Society longs for a return to the pre-pandemic normal, but it is becoming increasingly apparent that this is not possible. A new “normal” must be created that takes into account the lessons learned during the pandemic.
Employers can take comfort in the fact that the difficult situations and questions they are facing are being faced by all. Questions such as the extent of ongoing precautions that must be imposed to protect workers and whether employers may require workers to become vaccinated are of upmost importance.
Under the Occupational Safety and Health Act, employers are obligated under the General Duty Clause, Section 5(a)(1), to provide their workers with a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The Occupational Safety and Health Administration (OSHA) provided a significant amount of guidance throughout the pandemic containing recommendations on actions employers should take to protect workers from contracting and/or spreading COVID-19.
OSHA did not, however, create any formal COVID-19 requirements outside of those that generally fall under the General Duty Clause until June 10, 2021, when the emergency temporary standard (ETS) on COVID-19 was issued. The ETS only applies to employers providing healthcare services or healthcare support services. Employers who fall outside of this limited class are left to determine what precautions, if any, remain necessary to protect their workers from COVID-19.
Non-healthcare employers are not left in the dark. Although OSHA did not implement specific standards that must be followed for all employers, it did update its general guidance. While this guidance does not impose mandatory obligations upon non-healthcare employers, it does serve as evidence of potential efforts that employers could take to protect workers. Within this guidance, OSHA encourages employers “to engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19.”
The following steps are recommended to meet this objective:
- Granting paid time off for workers to get vaccinated.
- Instructing any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms to stay home from work.
- Implementing physical distancing for unvaccinated and at-risk workers in all communal work areas.
- Providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE.
- Educating and training workers on the employer’s COVID-19 policies and procedures using accessible formats and languages they understand.
- Suggesting that unvaccinated customers, visitors or guests wear face coverings.
- Maintaining ventilation systems.
- Performing routine cleaning and disinfection.
- Recording and reporting COVID-19 infections and deaths.
- Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19 related hazards.
- Following other applicable mandatory standards such as PPE requirements, respiratory protection, sanitation and access to medical and exposure records.
While these steps are not mandatory, they are useful tools that may be implemented to protect a company’s workforce.
Neither OSHA’s guidance nor the ETS standard address the question of whether an employer may (or should) require its workers to become vaccinated against COVID-19. It does, however, differentiate between unvaccinated “or otherwise at-risk workers” and those who are fully vaccinated. “[M]ost employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure” unless otherwise required by law1. In light of this, many employers now are asking whether they can require their workers to become vaccinated.
At the federal level, the Equal Employment Opportunity Commission (EEOC) recently has updated its guidance advising that Equal Employment Opportunity (EEO) laws do not prevent employers from requiring workers who physically enter the workplace to be vaccinated for COVID-19. If an employer elects to put in place a mandatory COVID-19 vaccine policy, it should ensure that its mandatory vaccine program complies with the reasonable accommodation provisions of the ADA (for individuals with disabilities) and Title VII of the Civil Rights Act (for religious accommodations) and does not discriminate against any individual or group of individuals based on a protected characteristic. The EEOC noted, however, that its guidance is limited to the EEO laws and that other federal, state and local laws and regulations also govern the COVID-19 vaccination of workers.
The Safer Federal Workforce Task Force governing federal employees and contractors advised that, at this time, “COVID-19 vaccination should generally not be a pre-condition for employees or contractors at executive departments and agencies to work in-person in federal buildings, on federal lands and in other settings as required by their job duties.”
Unfortunately, the Task Force does not provide any underlying reason for this recommendation. It is possible that this guidance stems from the potential legal risks that a mandatory vaccination policy would create due to the FDA’s current approval of the COVID-19 vaccines pursuant to the Emergency Use Authorization (EUA) process. The subsection of the Federal Food, Drug and Cosmetic Act (FDCA) that gives the FDA the ability to grant EUAs requires that individuals receiving the product are informed “of the option to accept or refuse administration of the product, [and] of the consequences, if any of refusing administration.” 21 U.S.C. § 360bbb-3(e)(1)(A)(iii)(III).
Outside of federal law considerations, employers also must be mindful of any unique state laws that may be impacted by a mandatory vaccine program. A number of lawsuits recently have been filed challenging mandatory vaccine programs under state law. For those states that recognize a common law cause of action for wrongful termination in violation of public policy, employees may assert the argument that a mandatory vaccine program violates the public policy embodied in the FDCA’s requirement that an individual be permitted to refuse the vaccination. This argument, however, recently was rejected by a US District Court Judge in Texas who stated that public policy clearly supports widespread inoculation efforts and that the group of employees bringing the lawsuit were not forced to receive the vaccinate2. As to this latter point, the Judge stated that the employees “can choose to accept or refuse a COVID-19 vaccine.” If they refuse, they “will simply need to work somewhere else.”
The Texas decision is only the first of many anticipated decisions regarding this issue, and it is unknown how each jurisdiction will side on the issue. As of this writing, there also is legislation pending in many states that would make it a violation of state law for an employer to require COVID-19 vaccinations as a condition of employment. In light of the above uncertainty, it is recommended that employers consult with legal counsel prior to implementing a mandatory vaccine program.
- OSHA did reiterate CDC guidance that vaccinated people should nonetheless monitor themselves for symptoms of COVID-19 (particularly if they have an exposure) and get tested and stay home if they do have symptoms.
- Bridges et al. v. Houston Methodist Hospital et al., Docket No. 4:21CV01774 (S.D. Tex. June 12, 2021).
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
The Labor, Employment and Immigration Group at Ice Miller is here for employers during these changing times.