As Kollman and Saucier’s Vincent Jackson previously blogged, in June 2021, a Texas federal court upheld a hospital’s policy requiring its workers to be vaccinated against COVID-19. Since that decision was rendered, an Indiana federal court issued its decision upholding Indiana University’s mandatory vaccination policy that applied equally to students, faculty and staff. The Seventh Circuit recently denied a motion for injunction regarding that decision while an appeal is pending. An emergency application for writ of injunction has now been filed with the U.S. Supreme Court regarding the Seventh Circuit’s decision.
Elsewhere, in Massachusetts, a currently enrolled student sued his private law school over its mandatory vaccination policy in Artem v. New England Law Boston, et al, Case No. 1:21-cv-10981 (D. Mass. Jul 19, 2021). The lawsuit was dismissed. Last year, a California state trial court upheld the University of California’s flu vaccination mandate by denying a preliminary injunction which raised implications of a COVID-19 vaccination requirement. Recently, The Department of Defense announced U.S. military branches will add the COVID-19 vaccine to its list of mandatory inoculations. Further, on July 30, 2021, President Biden announced that every federal government employee and onsite contractor must be vaccinated against COVID-19.
While lawsuits continue to arise, and clarity on the federal executive orders is forthcoming, we have gained a fairly consistent picture on how courts will consider employers’ authority to implement vaccination requirements: they are permissible but must comply with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
If your business chooses to require that employees become vaccinated against COVID-19, the practice is permissible and defensible. In May, the Equal Employment Opportunity Commission (EEOC) updated its guidance on COVID-19 and the workplace and unequivocally stated that employers may require employees to be vaccinated against COVID-19.
Generally, an employer may require its employees to be vaccinated, subject to Title VII’s and the ADA’s requirements for reasonable accommodations due to disability and/or sincerely held religious beliefs. Under the ADA, an individual who provides notice to the employer that a disability prevents him or her from receiving a vaccination cannot be required to be vaccinated or suffer adverse action, unless that individual would pose a “direct threat,” meaning a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. 1630.2(r). An employee who simply refuses to be vaccinated, without a documented reason claiming sincerely held religious belief or disability, is not engaging in protected activity and thus can suffer adverse action, including termination.
As I have blogged about in the past, I would remain wary of disclosing any specific employee’s vaccination status or even retaining vaccination records. The EEOC has confirmed that an employee’s vaccination record is considered confidential information under the ADA. Inadvertent or unintentional disclosures of individual employee’s vaccination status can run afoul with the ADA. Further, under the ADA, any medical information held by the employer must be housed separate from an employee file, and access limited to only certain individuals, such as a supervisor, safety personnel or government investigators. 29 CFR § 1630.14(c).