Winstead PC Shareholder Taylor White published his column in Texas Lawyer about labor and employment issues and trending topics. The article is titled “Employers Get Clarity on Mandatory COVID-19 Vaccination Policies in the Workplace.” The article is below:

For months, employers and employment attorneys have navigated a number of considerations and governmental guidance documents regarding COVID-19 vaccinations in the workplace. A key question has been whether employers can implement policies requiring employees entering the workplace to be vaccinated against COVID-19. Notwithstanding the business consideration of whether such policies should be implemented, the consensus among practitioners has been that mandatory COVID-19 vaccinations in the workplace are legally permissible. Two recent developments have generally confirmed that consensus: the Equal Employment Opportunity Commission’s May 28, 2021, updates to its technical assistance guidance, and a recent federal court order dismissing claims brought by employees against their employer based on the employer’s mandatory vaccination policy.

EEOC’s May 28th Updated Technical Assistance Guidance

From the EEOC’s perspective, “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” provided the employer otherwise complies with its other legal obligations. That is, if an employer mandates that its employees get the COVID-19 vaccine, it must try to accommodate any individual who cannot take the vaccine due to a disability covered under the Americans with Disabilities Act, pregnancy, and/or sincerely held religious beliefs, absent an undue hardship. The EEOC suggests that an employer consider accommodating unvaccinated individuals by allowing them to wear face masks, socially distance from coworkers or others, work modified schedules, get regular COVID-19 tests, work remotely, or be reassigned.

Another key observation the EEOC makes is that the vaccine is not always available to all protected classes equally, which could lead to disparate treatment claims. Specifically, “some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others,” such that “some employees may be more likely to be negatively impacted by a vaccination requirement.” Employers should consider this risk in implementing a mandatory vaccination policy and take action to minimize the risk, such as providing onsite vaccinations clinics or allowing paid leave to obtain vaccinations.

An employer must also meet many other requirements if it administers or contracts with a third party to administer the vaccine to employees. It is important to remember that “[t]he act of administering the vaccine is not a ‘medical examination’ under the ADA because it does not seek information about the employee’s physical or mental health.” So, the key ADA requirements, in this scenario, relate to pre-vaccination screening questions, as they may elicit disability-related information. The EEOC states that these questions must be “job related and consistent with a business necessity,” which generally means that if the employee refuses to answer them (and therefore does not get vaccinated) poses a direct threat to himself or others in the workplace. Employers must also maintain the confidentiality of the information obtained in the pre-vaccination screening process.

Dismissal Order in Bridges

On June 12, 2021, Judge Lynn Hughes in the Southern District of Texas dismissed claims brought by employees of the Houston Methodist Hospital. Bridges v. Houston Methodist Hospital, Civil Action No. 4:21-cv-01774 (S.D. Tex. June 12, 2021) (Hughes, J.). In Bridges, 117 hospital employees sued the hospital due to its policy of requiring the COVID-19 vaccination. The plaintiffs claimed that the policy would lead to their wrongful terminations and that no one can be required to receive “unapproved” medicines in emergencies. Judge Hughes rejected both of these arguments.

With respect to the wrongful termination claim, Judge Hughes specifically took issue with the employees’ allegations that the “currently-available COVID-19 vaccines are experimental and dangerous”—allegations which Judge Hughes described as “false” and “irrelevant” because “[v]accine safety and efficacy are not considered in adjudicating this issue.” Judge Hughes observed that, in “the press-release style” complaint, the plaintiffs claimed they were required to engage in some unspecified illegal act and refused to be “human guinea pig[s].” He clarified that receipt of the COVID-19 vaccination is not an illegal act and, “in the hospital’s judgment, will make it safer for their workers and the patients . . . .” State-imposed mandatory vaccination requirements (and involuntary quarantines, for that matter) do not violate public policy and have been found by the U.S. Supreme Court not to violate due process. Judge Hughes further stated that, while “not binding,” the EEOC’s May  28^th updated technical assistance guidance clarified that the EEOC did not believe mandatory vaccination policies violated federal employment laws, provided employers met their other obligations under the law.

With respect to the claim that mandatory vaccination policies violate federal law, Judge Hughes found that the plaintiffs “misconstrued” the law and “misrepresented” the facts. First, the laws the plaintiffs argued were violated by the policy applied to governments and not “private employers like the hospital . . . .” Second, the plaintiffs “are not participants in a human trial,” such that federal laws requiring “legal, effective and informed consent” for the same were inapplicable. Judge Hughes flatly rejected the plaintiffs’ argument that the vaccination requirement violates the Nuremberg Code because “[e]quating the injection requirement to medical experimentation in concentration camps is reprehensible.”

Judge Hughes clarified that the plaintiffs in the case had not been “coerced” to taking the vaccine either. They could “freely choose to accept or refuse a COVID-19 vaccine; however, if [they refused, they would] simply need to work somewhere else.” He stated the issue simply, and correctly when it comes to at-will employment, that “[e]very employment includes limits on the workers’ behavior in exchange for his remuneration,” which “is all part of the bargain.”

Takeaways

Employers—particularly those in the health care industry—may now take some further comfort that mandatory vaccination policies are defensible and will withstand scrutiny. Certainly, the plaintiffs in Bridges have pledged to fight on, according to some reports, so it remains to be seen whether the Fifth Circuit Court of Appeals or the U.S. Supreme Court will overturn the order in whole or in part. But the EEOC’s May 28th updated technical assistance guidance should provide further support for such policies—at least from an employment law perspective. Regardless, employers assessing whether to implement a mandatory vaccination policy should analyze all these risks and have a detailed plan and protocol for dealing with employee pushback and/or requests for accommodation.

Read the article on Texas Lawyer.

Reprinted with permission from Texas Lawyer© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

White is a member of Winstead’s Labor & Employment Practice Group. Throughout his career in private practice, he has served as a devoted resource for employers and managers facing workplace issues in courts and conference rooms. White regularly advises employers on requirements and best practices regarding discrimination, harassment, and retaliation claims under state and federal employment laws, and he often counsels clients on a myriad of litigation avoidance strategies. When in court, White is a zealous advocate on behalf of his clients for claims of breach of contract; employment-related torts; wage and hour violations; trades secrets misappropriation; restrictive covenant breaches; discrimination, harassment and retaliation issues; and, other state and federal law issues stemming from workplace disputes.

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