By Cynthia Gentile, J.D., SHRM-CP , Faculty Member, Dr. Wallace E. Boston School of Business and
Neil Goldsmith, partner, Lathrop GPM
Can employers require employees to get the COVID-19 vaccine? In this episode, APU professor Cynthia Gentile talks to attorney Neil Goldsmith about legal issues surrounding workplace vaccine mandates. Learn the legal grounds employers have for mandating vaccination as well as considerations involving the ADA and Title VII. Also hear details of a recent ruling from a Texas court that upheld an employers’ right to mandate vaccination and terminate employees who did not comply with the vaccination requirements.
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Cynthia Gentile: Welcome to the podcast. I’m your host, Cynthia Gentile. Thank you for joining me. Today, I’m excited to welcome back attorney Neil Goldsmith to the podcast. Neil’s a partner at Lathrop GPM, a full-service law firm with nearly 400 attorneys located in 14 offices from coast to coast. Neil’s currently doing a lot of work around workplace vaccine mandates, and I’m excited to discuss several very recent developments today. Welcome Neil, and thank you so much for coming back.
Neil Goldsmith: Happy to be back.
Cynthia Gentile: Well, as much as 2020 presented a lot of challenges for employers and employees, by all accounts, 2021 is proving yet again to be a pretty difficult road to travel, albeit for different reasons. As many employers curtail work-from-home accommodations and shift back to traditional workspaces, questions around mandatory vaccines have begun to surface. The Equal Employment Opportunity Commission has affirmed an employer’s right to question and to verify an employee’s vaccine status. Financial powerhouse Morgan Stanley issued a statement confirming that only fully vaccinated employees would be permitted to return to the office.
And in a recent Texas court decision, it even goes further affirming an employer’s right to mandate vaccines for all employees and to terminate those employees who refuse to comply.
Throughout the summer months more universities and other institutions of higher education have mandated vaccines for all employees and in some cases for all students. In other spaces, like K-12 schools, unions have often not supported any type of vaccine mandate and such have not been proffered. So some of the major developments I’ve just recounted here, but things are changing so quickly. Neil, can you give us a high-level overview of where workplace vaccine policies are right now?
Neil Goldsmith: Sure. I’d be happy to. Things have definitely come a long way in the last six months regarding the development of workplace vaccine policies. I think like with most things involving COVID-19, everyone was just very confused, there wasn’t a lot of clear guidance, certainly no case law about what’s appropriate and what’s not. But I think the common theme that we’re seeing over and over again with all the employment law issues related to COVID-19 is, I think safety is going to win the day.
I think what’s happening over these last few months is we’re seeing just how effective these vaccines are. The more mandates that we’re seeing or the more, what I’d call aggressive approaches to trying to get employees vaccinated, I think as a direct response of: one, the efficacy of the vaccine; and two, I think there’s somewhat of a domino effect too when some of the major employers come out and start to mandate vaccines or take very strong positions about what vaccinated employees can do versus unvaccinated employees. Then you see very much a ripple effect in the employer community.
The way things stand right now, the EEOC, as you mentioned, they’ve clarified thankfully that you can mandate the vaccine. I think once the EEOC gave its clear blessing, that’s what led a lot of these companies to maybe take more aggressive approaches on this front.
It doesn’t hurt too frankly, that the Biden administration has been very clear and very, very supportive of the vaccine. I think a lot of employers are saying, “Well, if the Biden administration is so supportive of it, it’s going to be difficult for us to run afoul of any sort of legal obligation that we might have. If our intention, again, goes back to safety and keeping our employees, our customers safe, and we’re doing what the government essentially wants us to do.” I think all of those factors have put us in a position now where these mandatory vaccine policies are not nearly as controversial as they were several months ago.
Cynthia Gentile: I certainly see the point of promoting safety and always having that as the guiding principle protecting employers in a lot of cases. But I suspect that employees will raise concerns around the safety of the vaccine. Are there any recognized exceptions in these cases where employers have required vaccines?
Neil Goldsmith: This is tricky and it’s a little bit trickier than the mask issue, which I know we’re not focusing on, but they’re somewhat related here. The recognized exceptions, if you will, the two main ones, are obligations under the Americans Disabilities Act to reasonably accommodate employees with disabilities. And the other is under Title VII, where there’s an obligation to accommodate individuals with sincerely held religious beliefs.
Those are the two main objections or exemptions or exceptions, however you want to frame those, that we’re seeing out there. Where this comes up is, let’s say you’re an employer, you mandate the vaccine, you have an employee who has been advised by their medical provider to not get the vaccine because of some particular condition that they have that may make it dangerous for them to take the vaccine. They could claim, “I would like an accommodation essentially of not having to get the vaccine.”
Similarly, on the religious front, you may have some folks who are a part of a religious group who object either to the general use of vaccines, or to some of the ways in which the vaccines are developed or particularly what types of cells and materials make up the vaccine as far as putting that into their bodies, that can conflict with certain religious observances of certain groups. So again, the same scenario there, employer says, “You must get the vaccine.” And person says, “Actually I can’t because of my religious beliefs. I’d like an accommodation to not get the vaccine.”
Cynthia Gentile: Thinking, I guess more specifically about those that may have protection under the ADA. What type of proof can an employer request in terms of substantiating the claim that the employee cannot be vaccinated?
Neil Goldsmith: They can ask for whatever supporting documentation they need to verify the employee’s claim. It’s just like any other accommodation requests, non-vaccine related, non-COVID related. Whenever an employee comes to the employer and says, “I’m sorry, I can’t work because of this reason.” Or, “I’m having trouble completing this task because of this condition. I’d like this accommodation.”
The employer always has a right under the ADA to ask for medical documentation from a reputable provider, substantiating that claim. That’s the same thing here. If an employee comes and says, “I can’t take the vaccine because I have this condition,” then the employer can say, “Okay, give us a doctor’s note and then we’ll go from there.”
Cynthia Gentile: Does the same hold true for a sincerely held religious belief that would not allow the employee to take part in the vaccine—the same type of documentation or substantiation?
Neil Goldsmith: No, not exactly. This, to be quite frank, it’s really difficult to independently verify whether someone has a sincerely held religious belief. There’s no requirement that they have to provide a note from their priest, their rabbi, their clergy, whoever their religious leader is or whatever organization they belong to. There’s no such requirement.
And this is one where the employer more or less has to take the employee at face value for it and rely on what the employee is saying. Unless, of course, they have very specific evidence that they’re aware of or that they’ve witnessed undercut the argument that they belong to a certain religion or that a certain religion includes this particular restriction.
Cynthia Gentile: Thinking about employee privacy rights. I have, I guess a little bit of a hypothetical, let’s say an employee isn’t able to be vaccinated either because of an ADA accommodation or requested religious observance accommodation. The employer asks the employee then to wear a mask. Is there any question or concern around whether wearing that mask, requiring that mask of an unvaccinated person, compels the employee to share publicly their vaccination status?
Neil Goldsmith: That’s a really interesting question. I’m going to answer a sub-question in there first, which I think is well, is sharing your vaccination status or requiring that someone share their vaccination status, is that unlawful? I don’t think you can clearly say the answer is “Yes, it is.” I think it’s a bad idea for a number of reasons and potentially implicates some just tort privacy laws and some issues under the ADA. The ADA requires any medical information that an employer receives about an employee to be securely stored.
What I hear a lot, incorrectly, is that people say, “Well, that violates HIPAA.” What most people don’t understand is that HIPAA does not apply to employers. HIPAA applies to health plans and healthcare organizations about patient data. That’s usually the purpose of HIPAA. It’s not meant to apply to private employers. If I’m a private employer, employee shares with me their health data vaccination status, and I share that with someone else, I haven’t violated HIPAA. I may have violated some other laws and there’s some other potential risks, but it’s not really a HIPAA issue. There’s also, of course, just the practical piece of it, do you want to be the employer that’s sharing this information about their employees for just morale reasons? I don’t think it’s a good idea.
Neil Goldsmith: Going back to your question though, about this mask issue, and is there a problem with requiring these unvaccinated employees to wear masks because it essentially outs them so to speak as someone who is not vaccinated? I think there is a bit of an issue with that. My concern on this front, and this came up a couple of months ago when the CDC revealed their new mask guidance and basically said, “Yeah, you can take the mask off if you’re vaccinated.”
The concern here is someone says, “I can’t get vaccinated,” setting aside the whole, can we make you get vaccinated or not, or combination piece. Let’s say your employer just says, “All right, those who are vaccinated don’t have to wear masks. And those who are not vaccinated do have to wear masks.” And if that person, who’s not vaccinated, isn’t vaccinated because of their disability, they’re potentially being singled out or ostracized, treated differently, because of their disability.
I don’t think that’s per se unlawful, but I think someone could maybe make an interesting claim on that basis. Particularly if that employee is truly being ridiculed or ostracized. If people are being rude to them at work and maybe their supervisor’s not happy with the fact that they’re not vaccinated and they start treating them poorly or differently. There’s some risk there. Like I said, it’s not a per se claim, I don’t think on that basis alone, but it certainly causes some additional issues.
Cynthia Gentile: The EEOC has confirmed that an employer can request proof of vaccination. Is that correct?
Neil Goldsmith: That’s correct.
Cynthia Gentile: That has not been determined to violate any privacy, again, is that correct?
Neil Goldsmith: Yes. The concern though with that, and I think EEOC even mentioned this in their guidance is, you can ask about vaccination status, but be careful about, “Just give me the vaccination status, we don’t need the whole reason for why you are or aren’t vaccinated” because that can get into other medical information that potentially need not be shared. Because under the ADA, yes, you can ask an employee about their medical conditions, but only to the extent that you need to, to determine whether or not a reasonable accommodation needs to be made. So there’s always a concern that if you ask for too much information or you make too broad of a request, you’re going to get information that goes beyond that and can cause further problems.
Cynthia Gentile: Yeah, that makes sense. What about another hypothetical? If you are in a customer- or a client-facing environment, let’s say a doctor’s office, let’s keep it within healthcare. Can the partners, the doctors in the office, attest to their patients, “Everyone here has been vaccinated.”
Neil Goldsmith: I had this come up. I work with an agency that provides in-home childcare. That was essentially the question of, can we advertise that all of our caregivers are vaccinated or certain caregivers are vaccinated? I think the answer is, “Yes.”
This goes more towards delivery of services and customer service than it necessarily does an employee-relations issue. That’s how I view it anyway. If a company says, “Okay, well, in order to get people to come to our restaurant or to go to doctor’s office, or to use our service providers, if we think what’s going to get them to do that is to let them know that our people are vaccinated and we can legally ask who’s vaccinated and who’s not? We’re certainly going to ask for that information and we’re going to advertise that.”
What they need to be careful about is how they do it and whether they do it on an anonymized basis in the aggregate, or if they’re doing it individually. “Well this person is, this person isn’t, this person is, this person isn’t,” that’s where things could get a little bit dicey.
Cynthia Gentile: And then we come back to the question about the masks. If you have a childcare center where nine out of 10 of your teachers are vaccinated, the one that’s wearing the mask is probably pretty clearly not. Do people advocate to take their kids out of that classroom? I can see a lot of complications around that, that on the one hand might be unavoidable in terms of making the general consumer feel safer, but might cause some problems for the employer.
Neil Goldsmith: Right, and in a situation like that, my child’s daycare center, for example, they’ve communicated to us, most of the teachers are vaccinated, but they’re still requiring all teachers to wear masks. I think the reason’s twofold. One, obviously the children are not vaccinated. But, two, I think some of it is to protect the folks who are not vaccinated for whatever reason from ridicule or from parents asking questions or making comments, things like that. I think it’s a wise decision in my opinion, to keep things as uniform as possible.
Cynthia Gentile: Thanks for sharing your thoughts, Neil. Welcome back. Today, we’re talking with attorney Neil Goldsmith about the shifting landscape of workplace vaccine mandates. Let’s get back to the conversation. That kind of levels the playing field for the employees at that point, I wonder how long we might be able to promote that. Some point, I would think that vaccinated employees may feel some discontent around continuation of masking policies. Of course the employer can require that, I just foresee possibly some complaints.
Neil Goldsmith: Yeah. I think it’s going to be really interesting when one of two things happens. One, if we hit herd immunity in a specific community, which who knows if we will and what that would look like. Two, if the vaccine is opened up to people of all ages.
Because you can say, “Well, I’m wearing the mask because I am protecting the other people who aren’t vaccinated.” But at certain point, most people are vaccinated and everyone will have an opportunity to get vaccinated, too. So, yeah, I agree. It’s going to be interesting to see how things shift at that point.
Cynthia Gentile: I want to talk a little bit about this fairly recent federal court case out of the Southern District of Texas. I believe it’s Bridges v. Houston Methodist Hospital. In this case, the employer-mandated vaccines and then when some employees refused to get them, they were terminated. Can you talk a little bit about this case and maybe the effects of the case that you’ve seen?
Neil Goldsmith: I would be happy to. I got to say, this is one of the best opinions I’ve read in a long time for a number of reasons, not only just how it’s written, but also what the result is, how these arguments were addressed. I think it’s really helpful for employers everywhere.
This involved a hospital, which I think it was helpful, certainly, that this was a hospital mandating vaccines for everyone. I, frankly, can’t think of another type of organization or industry that is more justified in mandating vaccines than a hospital. So I think that played into it here, but I still think whether it was a hospital or some other employer, the reasoning and the decision would likely be the same.
Just very briefly, a healthcare worker sued along with other, I think 116 other employees, to block the vaccine mandate that was put forth by the hospital. They put forth a number of different theories in their complaint, which interestingly enough are the same type of theories that I started reading, and I’m sure you did too, Cyndi, when this vaccine came out, and the big question was, can you mandate?
People were going through well and an employee could make this argument and employee can make that argument. But, of course, there’s no precedent for this, we’re just all speculating on how a court would rule on such arguments.
Now we don’t have to speculate because we have a decision here in Texas where a judge basically shot down all of these arguments. And the main ones centered around the fact that, “Well, we can’t be coerced into taking this vaccine. It’s illegal, it’s not fair, it’s dangerous, you can’t tie my employment to me having to take this vaccine.” And what the court basically said was, “No, you’re wrong, an employer can tie your employment to requiring this vaccine.”
I want to back up too for a second. Mandating vaccines is not something that is completely new. Some healthcare organizations and hospitals have mandated flu vaccines or TB tests for, I know long-term care, in-home care industries. So this is not completely new, there are some employers that have mandated certain types of vaccines.
Cynthia Gentile: Yeah. I’m glad you mentioned that because I was aware of the same in terms of in certain settings, like long-term care, childcare, hospitals, where some vaccines, even seasonal vaccines, like the flu shot, are required. I wondered what the precedential value of those requirements might be.
Neil Goldsmith: Yeah. Those weren’t noted in this particular decision, but I think there are certainly things you can point to, or at least you can point to it for the general proposition that this is not completely unheard of. There have been cases out there that have upheld vaccine mandates.
Now, usually those involve some kind of religious objection or other type of objection to the vaccine requirements. Whereas here, this wasn’t at play in this case, the ADA and religious piece, this was just employees who said, “You know what? I’m not comfortable taking this vaccine. I don’t think it’s safe. I think it was rushed through too quickly. I shouldn’t have to be,” as one of the plaintiffs put it, “A human guinea pig.”
Cynthia Gentile: Just to put the finest point on it, these employees are not making an ADA accommodation request or a religious observance request?
Neil Goldsmith: They are not. Their arguments are just based on, as the court describes it, a wrongful termination, kind of just a generic claim, a termination and violation of public policy, which by the way the state of Texas doesn’t recognize. Some other states do. The most interesting argument, and the one that I was very excited to see this court address, was an argument regarding the emergency use authorization piece of this vaccine.
For those of you who aren’t aware, the vaccine was developed and put out under the emergency use authority, essentially, of the Secretary of Health and Human Services. Basically if there’s an emergency and we need to get a vaccine out, it doesn’t need to go through the lengthy several-year clinical trials. There’s a shorter process that we can go through and approve it on an emergency basis.
As part of this emergency use authorization, one of the regulatory requirements is that if you’re going to give the vaccine to someone, you have to advise them of the, “Potential benefits and risks of use and the option to accept or refuse administration of the product.” And so it’s this option to accept or refuse that the plaintiffs really focused in on and said, “Aha, I have the option, you can’t make me take this vaccine.”
And what the court said was, “No. These regulations have nothing to do with employment law and what employers can and can’t do. All these regulations pertain to is what powers and responsibilities the Secretary of Health and Human Services has an emergency. And it says, if you’re going to put forth an emergency vaccine, you just need to advise people of this before they take it.”
Interestingly, the court also said there is no private right of action even under this regulation. Even if it did apply to employers, which means if I’m an employee, I can’t sue for it. I can’t go to court and file a lawsuit claiming that my employer violated this provision. The court said, “Look, this doesn’t apply.” Court also says, “Even if it did apply, you are being given the option to refuse or accept the vaccine. Your consequence if you refuse, is that you’re fired and you’ll have to work somewhere else, but you’re not being forced to do it. You’re not being unlawfully coerced to do it.”
I’m really glad the court emphasized that and explained that because I think that’s been my reasoning all along of, “Yeah, they have the option to accept, to refuse, but obviously there are consequences if they choose not to take it, they just can’t work at that particular organization.”
Cynthia Gentile: Are you aware of any appeals or any appellate status of the case?
Neil Goldsmith: I know an appeal’s been filed. I think the decision was June 12th. So it’s still very recent. I also know, I think I read recently that the employees were in fact terminated. I think we’ll see an appeal on this to the Fifth Circuit. I’d be very surprised if this was reversed, but whether it’s reversed or upheld, it’ll be nice just to get some more authority on this important issue.
Cynthia Gentile: Absolutely. It’s a really interesting and important case to consider. We’ve talked about the stick as the motivator, how about the carrot? Can employers incentivize employees to get vaccinated?
Neil Goldsmith: Yes, they can.
Cynthia Gentile: What incentives are allowed and what maybe go too far?
Neil Goldsmith: This is another question that didn’t have a lot of answers a few months ago, but thankfully the EEOC came out with some updated guidance, I believe in May. Frankly, a little bit late in my opinion, but better late than never, I guess. That said, “Yes, you can provide incentives.” Not to get too deep into the legal weeds here, but there was basically some previous guidance that had been withdrawn that caused some concern in the employer community about whether or not employers can provide certain incentives. There’s some guidance that basically said, “If you’re providing health- and wellness-related incentives, those incentives can’t be anything more than, I think it referenced something like a water bottle or a gift card with a small amount on it.” Obviously very, very small incentives.
Neil Goldsmith: That’s not what we were seeing, as far as what employers were offering for incentives. I’ve seen cash payments, $100, $200. I’ve seen financial gift cards, PTO, a full day of PTO, that’s obviously very valuable. What happened was, all of these employers just started incentivizing and there was no super-clear guidance on it.
But again, I think this goes back to what I said initially about your end goal is safety and your end goal is trying to keep your workplace as safe as possible. And if you’re doing things to make that happen, I think it’s going to be difficult for a court or an agency to come down on you for incentivizing people to go get the vaccine.
Neil Goldsmith: Again, because it’s been a big part of the Biden administration’s effort to get a hold on this pandemic. I think a lot of employers just said, “You know what? Yeah, there’s not a whole lot of guidance, but we’re going to do whatever we can to get people vaccinated and we’ll deal with the consequences later, whatever they may be, but we don’t think there are going to be any.” And when the EEOC came out and said, “You can provide those incentives,” their plan was validated.
Cynthia Gentile: Yeah. It’s a compelling interest for the employer, I understand. And certainly when safety is the guiding principle, you’re doing something with a good intention, I just foresee messiness with employees who do have a real inability to get the vaccine for either a physical or an ADA reason or a religious observance reason, saying, “I wasn’t able to earn that extra day off or to get that $250 Amazon gift card.” It’s just an interesting question that I think has to play itself out.
Neil Goldsmith: Yep. Messiness is what keeps me gainfully employed. So I welcome the messiness and we’ll help figure it out.
Cynthia Gentile: We like to talk about the messiness don’t we? Yes. You mentioned the EUA, the Emergency Use Authorization. My final question is, I’m asking you to do a little forecasting. Do you foresee any aspect of this workplace mandate landscape shifting when and if the vaccines do move from the EUA to a full approval?
Neil Goldsmith: Maybe a little bit, but I don’t think honestly it’s going to be a major event or cause a major shift in policy. I think with this court case from Texas, I mean, this has been really helpful to put to bed one of the potential risks and legal arguments that employers might face regarding the fact that it’s only under EUA and it doesn’t have full approval. But of course once it goes to full approval, then you can say, “Well, it was certainly fine under the EUA, it’s definitely fine now that it’s been fully approved.”
I think what it’s going to do is just further legitimize the efficacy of the vaccine, which I think will further allow for even greater justification of employer policies that have the goal in mind of getting as many people vaccinated as they can.
Cynthia Gentile: Yeah. Polling suggests, just general-population polling, that it’s a pretty small number of people who claim that the full authorization will make the difference in their assessment. They are opposed to the vaccine, now, it’s such a pretty small number that would be then convinced. Although I think time will tell as we move further into this year and into next year where that will land. But, it certainly would seem to me that if the employer was free to do these things when it wasn’t fully approved, they’re only more covered when it is.
Neil Goldsmith: Yeah, I think that’s right.
Cynthia Gentile: Thank you so much for talking with me today. This is such an interesting and important topic right now and very much in flux. I appreciate you giving me your perspectives and some of your thoughts about where this will land moving forward, because I know it’s going to change.
Neil Goldsmith: Yes, it will. Thanks for having me here today. It’s always fun to talk about these ever-changing issues.
Cynthia Gentile: I really enjoyed our conversation. Thank you to our listeners. Be well and be safe.
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