In January 2020, our lives were unexpectedly altered with the arrival of COVID-19 to the United States. Most, if not all of us, experienced a direct impact upon our lives as we learned about the deadly disease and transitioned our work and personal lives online and to isolation at home. Thankfully, three vaccines have now received emergency use authorization from the FDA. In our efforts to return to “normal,” one question many people are facing is whether or not employers can mandate employees be vaccinated before returning to work.
As I learned from a wise professor on the first day of law school – the answer is “yes and no.” At the outset, it is imperative to recognize this is a novel issue and it could be years before the federal court system in our country, including the Supreme Court, provides guidance and insight.
Traditionally, the federal government has regulated employers in two ways. The federal government implements regulations to increase safety in the workplace. The federal government also regulates employers to prevent discrimination in numerous contexts, including disabilities and certain religious beliefs. The Equal Employment Opportunity Commission (EEOC) is the arm of the federal government charged with policing discriminatory practices.
From the employer’s perspective, requiring a vaccine is a safety measure. A vaccine is meant to protect the health of employees, clients, the public, and others in the workplace. Generally speaking, most employment in the southern United States is “at will.” Thus, employers enjoy wide discretion in setting workplace rules, hiring and firing. While there is nothing currently preventing employers from requiring COVID-19 vaccines, employers should be prepared to offer reasonable accommodations for those employees who object to vaccination. Thus, so long as appropriate accommodations are made where necessary, it is reasonable to anticipate employers will be allowed to utilize a vaccine mandate.
From the employee’s perspective, a vaccine requirement is a further intrusion upon the employee’s personal space and preference. For those employees with a basis for not being vaccinated, then your best interest is to document (in writing) the reasons for your position and any accommodations offered by your employer. With that said, be prepared to accept a reasonable accommodation in order to keep your job.
For example, on one end of the spectrum are health care providers, such as nurses and doctors. Remote work and/or isolation from their patients (customers) is not practicable and most likely these employers will be acting legally to require vaccination. On the other end of the spectrum are computer analysts and data entry positions. Most of these positions have transitioned to remote work, thus an employer requiring these employees to be vaccinated could violate federal and/or state law.
As our system of jurisprudence tackles these issues in the years ahead, expect a case-by-case analysis by the courts. It is also likely that specific state laws could impact an employer mandate.
Chris Mingledorff and Michael Patterson are attorneys and partners at Daniel Island law firm, Mingledorff & Patterson LLC. For more information, go online to mptrial.com/ or call 843-471-1015.