Tennessee Business Roundtable General Counsel, 2020-2021 Term
Partner and Office Head, Nashville at Constangy, Brooks, Smith & Prophete LLP
The New York Times published an essay on December 12 in which the writer asserts, as a blanket statement, that employers may mandate vaccinations as a condition of employment. This is simply wrong.
First, there is no controlling legal authority on the subject. None. The EEOC has issued pandemic related “guidance” in the past that does not have the force of law. And that guidance said employers must “accommodate” employee assertions that vaccination would be inconsistent with a claimed disability or religious belief. Updated guidance says basically the same thing. OSHA says employers may mandate vaccination as long as it excepts those employees claiming getting vaccinated would “create a real danger of serious illness or death” such as a serious reaction to the vaccine. The NLRB will almost certainly say an employer cannot penalize employees who engage in protected concerted activity protesting mandated vaccination. You get the point.
Second, expanding on my first point, “guidance” from the CDC, EEOC, OSHA or any other agency is simply that—guidance. “Guidance” does not have the force of law. I cannot emphasize that enough. The Department of Labor issued “regulations” under the Families First Coronavirus Response Act very quickly. Major parts of those “regulations” were struck down within months by a federal judge because the judge, with reason, concluded the “regulations” were inconsistent with the actual statute. This included the portion of the “regulations” defining the term “health care worker.” Employers act at their peril when relying on “guidance” or “regulations” that don’t have the force of law.
Third, we enforce employment laws in this country with litigation. Thus, every employee is, in effect, a potential private attorney general if they can find a lawyer to sue on their behalf. Once the lawsuit is filed the defendant must engage counsel, respond to seemingly unlimited interrogatories and demands for documents, and participate in depositions. The allegations presented by the plaintiff are presumed true at the initial stages of litigation. There is no legal mechanism to shut down litigation promptly if the complaint is carefully prepared, and lawyers know how to do that.
Fourth, the reality is the vaccine isn’t going to be available for most people for months. So the question of whether employers should mandate vaccination doesn’t need to be answered yet. Perhaps, although seemingly unlikely, legally binding legislation or regulations will exist by the time the vaccine is readily available for most employees.
Employers can mandate masks and distancing. Employers can require employees who have been exposed to the virus or have symptoms stay away from the workplace. Employers can mandate that employees work remotely if the work can be done remotely. Requiring a vaccination is an entirely different thing.