Are Mandatory Vaccinations Included in Back to "Normal"?

As life begins to return to some semblance of “normal” (i.e., what it was like before terms like “aerosol droplets,” “fomite,” “herd immunity,” and “PCR tests” were part of our daily lexicon)  employers are faced with difficult questions about what a return to “in-person” work looks like.  Atop the list is vaccinations, and whether as a condition of returning to the office, employers should require their employees to be vaccinated against COVID-19.

The goals of such mandatory vaccination programs are commendable.  First, vaccinations will allow many work settings to look more like they did before March 2020.  Second, if employers encourage or require their employees to be vaccinated – the theory goes – more people will get vaccinated, and the US will achieve herd immunity faster.  According to the CDC, more than 182 million, or 67.1% of Americans over 18, have received at least one dose of the vaccine as of July 6, 2021. More than 157 million, or 47.5% of adults, have been fully vaccinated.

But can employers require their employees to get the vaccine as a condition of continued employment?  As we have covered before, the answer remains “yes,” but new guidance from a federal district judge in Houston, Texas, and guidance from Equal Employment Opportunity Commission (“EEOC”), further solidifies and clarifies that “yes.” Specifically, employers can require their employees to get vaccinated if they want to keep their jobs. This dictate is not absolute as employers must make exceptions if an employee needs a reasonable accommodation based on a disability or a sincerely held religious belief. However, to the extent an employer is considering implementing such a policy, it is worth understanding the Texas opinion, as well as the EEOC guidance on the subject.

First, some background.  On April 1, 2021, Houston Methodist Hospital (the “hospital”) announced a policy that by June 7, 2021, all employees were required to be vaccinated against COVID-19 at the hospital’s expense. One hundred seventeen employees sued to block the vaccination requirement, and the hospital filed a motion to dismiss the lawsuit.  According to the complaint, the plaintiff alleged that – absent an order enjoining the hospital – she and the other class members she represented would be wrongfully terminated for refusing to take a vaccine that was “experimental and dangerous.”  The District Court rejected such claims as “false…[and] also irrelevant,” and explained that for a termination to be illegal, an employee must show that: 1) she was required to commit an illegal act that carried the risk of criminal penalties; 2) that she refused to engage in; 3) as a result of which, she was discharged; 4) which was the only reason for the discharge.  The complaint did not specify what illegal acts the plaintiffs allegedly refused to perform, other than refusing to be a “human guinea pig.”  The Court reasoned that requiring employees to get vaccinated is not an illegal act, and rejected the argument that the hospital’s vaccine mandate violated public policy, relying on a 1905 decision from the United States Supreme Court that held that compulsory vaccination did not violate the Fourteenth Amendment.

The Court dismissed the plaintiff’s claims that “being forced to be injected with a vaccine or be fired” was coercion. Instead, the Court explained that “[the hospital was] trying to do their business of saving lives without giving [their patients] the COVID-19 virus.  It is a choice made to keep staff, patients, and their families safer.”  The Court went on to say, “[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.”  Concluding the Order, the Court equated declining to get vaccinated as the same as “refus[ing] an assignment, chang[ing] office, [or having an] earlier start time,” all of which would be reasonable grounds for termination.  “Every employment includes limits on the worker’s behavior in exchange for his remuneration.  That is all part of the bargain.”

The long and the short of it is employers can – subject to providing reasonable accommodations under the ADA or Title VII – condition employment on employees receiving the COVID-19 vaccination. And while it should be noted that the decision from the Southern District of Texas has been appealed to the Fifth Circuit, at least for now, mandatory vaccination policies are legal.  If this is the route your company chooses to take, it is strongly recommended that you consult with counsel in developing and communicating such a policy and make sure that all accommodations are being handled in a consistent manner.