Even before the Pfizer COVID-19 vaccine received full FDA approval, legal challenges to employer or government vaccine mandates were unlikely to be successful. One judge has already ruled in favor of defendants, while others are pending.
Governments and private employers continue to grapple with the best way to achieve a safe workplace for their employees in light of COVID-19 and the delta variant. Due to recent and ongoing changes in the legal landscape, the trend toward vaccination is becoming somewhat clearer, and many employers are implementing vaccination mandates. But questions and uncertainty, with some corresponding risk, remain.
Current EEOC Guidance
The Equal Employment Opportunity Commission’s (EEOC) May 2021 updated technical guidance on COVID-19 clarified that any vaccination authorized by the FDA is not a “medical examination” for purposes of the Americans with Disabilities Act (ADA). The guidance indicates that employers may condition employment on vaccination status, provided the employer grants reasonable accommodations to employees who are unable to receive the vaccine because of a disability or for religious reasons. Thereafter, a small percentage of employers in the U.S. began requiring employees to be vaccinated to return to work or as a condition of employment. Other employers took a “wait and see” approach while the vaccinations were under emergency use authorization (EUA) status with the Food and Drug Administration (FDA).
On August 23, 2021, the FDA granted full approval to Pfizer’s coronavirus vaccine for people age 16 and up, meaning the vaccine is no longer under emergency use authorization (EUA). Many public and private employers had been waiting on such FDA approval before implementing vaccine mandates. With full approval, many employers now believe that a vaccine mandate has an even better chance of withstanding certain legal challenges, in addition to possibly removing psychological barriers for some employees.
Recent Increases in Vaccine Mandates
The vaccination mandate generally started in the health care field and has already withstood at least one legal challenge. Methodist Hospital in Houston, Texas, successfully defended its policy in federal court in the case of Bridges v. Houston Methodist Hosp. The court cited the updated EEOC guidance favorably and rejected various arguments relating to or stemming from the EUA status of COVID-19 vaccines.
The overall tone of the court’s opinion was favorable to vaccination: “Methodist is trying to do their business of saving lives without giving [patients] the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. [The plaintiff] can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”
Again, this case arose in the health care field, and other legal challenges, some similar and some not, remain pending in other courts.
On July 6, 2021, the Deputy Counsel to President Biden issued a Memorandum Opinion stating that the EUA status of COVID-19 vaccines does not prohibit public or private entities from imposing vaccination requirements. The Biden administration followed by requiring federal workers and contractors to be vaccinated or be subjected to mandatory masking, testing and social distancing. The Biden administration has directed the Department of Health and Human Services to implement regulations requiring nursing homes to vaccinate all of their employees or else forgo payments from Medicare and Medicaid.
New York City and San Francisco have banned unvaccinated people from some public spaces, including gyms, bars and restaurants. New York City is now being sued for implementing these measures by several restaurants. They allege that the requirement places a burden on restaurants, gyms and entertainment facilities unequally because not every place of public accommodation is subject to the same rules.
Now that the FDA has given final approval to the Pfizer coronavirus vaccine for people age 16 and up, the number of vaccine mandates in the public and private sectors are increasing rapidly. Notably, members of the U.S. military will be required to receive vaccinations, as well as a number of municipal and educational sector employers.
Vaccine Mandates for Unionized Employers
For unionized employers, there are special additional considerations. A required vaccine program would likely be considered a mandatory subject of bargaining in connection with the employer-labor relationship. This means that the employer must bargain with the union to reach an agreement or an impasse on the issue before such a vaccine policy is implemented. Risks for failing to follow such a process would include grievances, unfair labor practice charges and even federal lawsuits for breach of contract. Union leadership has been split on the issue of mandatory vaccine policies. Prudent employers should consider these factors before attempting to implement a mandatory vaccine policy where a collective bargaining agreement exists.
The EEOC’s updated guidance, the victory (pending appeal) for Methodist Hospital in Houston and recent actions by the Biden administration and various other governmental entities are signaling that private employers can mandate vaccination as a condition of employment, with exceptions based on religious beliefs and disabilities. The list of private employers mandating vaccines for some or all of their workers continues to grow and includes United Airlines, Delta Air Lines, Citigroup, Facebook, Ford, Walmart, McDonald’s and a number of law firms. This should further encourage employers that would like to get their employees back in the workplace as safely as possible by mandating COVID-19 vaccination.
Now that the Pfizer vaccine is fully approved and the delta variant rages on – and as society’s needs to continue business, leisure activities and education become more urgent – we are sure to see more mandates and likely more litigation challenging them.