Employment Law Expert Analyzes Employers’ Vaccination Mandate Options

July 28, 2021
Erin McLaughlin, who leads the labor and employment section of the Pittsburgh-based Buchanan Ingersoll & Rooney law firm, offers her insights on the current moment around employer vaccination mandates

Several important developments took place on Monday, July 26. First, a collective of 58 national healthcare associations co-signed a public statement endorsing the mandating of vaccination for healthcare workers; second, the Department of Veterans Affairs announced that it would require its employees, including clinicians, to become vaccinated within eight weeks; and the Justice Department made public its legal advisement on vaccination, which was produced on July 6, and stated that federal law does not forbid either government organizations or private employers from mandating vaccination among employees.

The 58 organizations signing the public statement included some of the most prominent national healthcare professional organizations, including the American Medical Association, American Nurses Association, American College of Surgeons, and Association of American Medical Colleges.

As the leaders of the 58 associations stated, “The Due to the recent COVID-19 surge and the availability of safe and effective vaccines, our health care organizations and societies advocate that all health care and long-term care employers require their workers to receive the COVID-19 vaccine. This is the logical fulfillment of the ethical commitment of all health care workers to put patients as well as residents of long-term care facilities first and take all steps necessary to ensure their health and well-being. Because of highly contagious variants, including the Delta variant, and significant numbers of unvaccinated people, COVID-19 cases, hospitalizations and deaths are once again rising throughout the United States.1 Vaccination is the primary way to put the pandemic behind us and avoid the return of stringent public health measures,” they stated. As a result, they said, “We call for all health care and long-term care employers to require their employees to be vaccinated against COVID-19.” And, they added, “We stand with the growing number of experts and institutions that support the requirement for universal vaccination of health workers.2,3 While we recognize some workers cannot be vaccinated because of identified medical reasons and should be exempted from a mandate, they constitute a small minority of all workers. Employers should consider any applicable state laws on a case-by-case basis.”

The DVA announcement, posted to the department’s website, began, “Department of Veterans Affairs Secretary Denis McDonough announced he will make COVID-19 vaccines mandatory for Title 38 VA health care personnel — including physicians, dentists, podiatrists, optometrists, registered nurses, physician assistants, expanded-function dental auxiliaries and chiropractors — who work in Veterans Health Administration facilities, visit VHA facilities or provide direct care to those VA serves. VA is taking this necessary step to keep the Veterans it serves safe. Each employee will have eight weeks to be fully vaccinated.” Indeed, the press release stated, “We’re mandating vaccines for Title 38 employees because it’s the best way to keep Veterans safe, especially as the Delta variant spreads across the country,” McDonough said. “Whenever a Veteran or VA employee sets foot in a VA facility, they deserve to know that we have done everything in our power to protect them from COVID-19. With this mandate, we can once again make — and keep — that fundamental promise.”

Meanwhile, as POLITICO’s Nick Niedzwiadek and Myah Ward wrote on Monday afternoon, “Justice Department lawyers say that federal law doesn’t stop private businesses or public agencies from mandating Covid vaccines, according to an opinion released on Monday just hours after the Department of Veterans Affairs became the first federal agency to mandate inoculations for some of its employees. The opinion from the department’s Office of Legal Counsel, dated July 6, opens the door for more businesses to require the shots for U.S. workers as Covid spreads among the unvaccinated, and comes two months after the Equal Employment Opportunity Commission released guidance saying U.S. employers could require all employees physically entering an office space to get the vaccine,” Niedzwiadek and Ward wrote.

Shortly after the DVA announcement had been made public, but just before the publication of the POLITICO article on the Justice Department’s legal advisement, Healthcare Innovation Editor-in-Chief Mark Hagland spoke with Erin McLaughlin, a shareholder of the Pittsburgh-based Buchanan Ingersoll & Rooney law firm. McLaughlin leads the labor and employment section of the firm, which accounts for about 75 of the nearly 400 attorneys in the firm. Below are excerpts from that interview.

Legally speaking, can employers require employees to be vaccinated?

Yes, they can, unless there’s a state or local law saying otherwise. A private employer can require employees to become vaccinated, as long as they accommodate sincerely held religious beliefs and disabilities.

What’s a disability, in the legal context?

Are there disabilities that will disqualify you from performing a job? That’s a key question to answer. For example, an individual who lost their arms probably couldn’t drive a truck. But there are other disabilities that would allow an employee to perform the job, but would require an accommodation. So if you’re an employee and there’s a vaccinate mandate and you go to your healthcare provider and for whatever reason you cannot get access, then you go into an iterative process.

So how would you define the concept “sincerely held religious beliefs”?

It’s similar, except that sincerely held religious beliefs is a broader category than most people generally think. An employee has to show that based on a religious belief they have is that they’re not able to get the shot. The most recent one I’ve heard is among Catholics, that there’s aborted fetal tissue in the Johnson & Johnson vaccine.

But what if a sincerely held religious belief is based on false facts?

So, it is largely subjective, and I tell employers, you’re at the mercy of whatever court you get, if you choose to challenge somebody’s sincerely held religious belief. So I’ve had them err on the side caution.

I am aware of a situation in which a hospital CEO has been having to deal with the fact that 80 percent of the nurses in their hospital are refusing to get vaccinated, and are still treating patients. That CEO is hoping for final FDA approval of the three emergency-approved COVID vaccines soon. Could that CEO require vacation at the point at which the FDA issues final approval for the Pfizer, Moderna, and Johnson & Johnson vaccines?

So the question then becomes, can I make this a mandatory condition of employment? And if they say, I have a sincerely held religious belief. I can challenge that. I’m not really aware of a religions that precludes an individual from getting a vaccine. I’ve seen individuals say that, though. So my suggestion there would be to work with the individuals and attempt to accommodate them. You could require mask-wearing, social distancing, even separate lunchrooms. You can require them to take weekly COVID tests at their expense. There are ways to mitigate an individual’s risk.

You’re aware of the Houston Methodist Health case, correct? In that case, a federal judge sided absolutely with Houston Methodist as an employer, in his June 12 ruling.

I think that’s the correct result. In that case, the hospital articulated a legitimate business reason to justify the need to have their employees vaccinated, and balancing the rights involved, the court did a nice job in justifying why the healthcare employer could require vaccines.

When the Pfizer, Moderna, and Johnson & Johnson vaccines get final FDA approval, will that change the situation, from a legal standpoint?

It will probably reinforce that if you are an employer that wants to have a vaccine policy, that eliminates any concern that the vaccines are not fully vetted. From a medical standpoint, I don’t see it to be that much different from the position we’re in now.

Now, as we know, flu vaccines are offered every new flu season, and no one requires that their employees be vaccinated for the flu. What are your thoughts about the contrast with the COVID vaccines?

I actually have seen healthcare employers require flu shots of employees. But the answer here is that, yes, because of the mortality rate of COVID-19, the restrictions everyone’s been forced to endure, and the rate at which it appears to be transferred from one unvaccinated person to another, all of that provides really solid justification, especially for healthcare employers, to mandate vaccination.

Do you think the Houston Methodist case will be the precedent that judges in other jurisdictions will use?

I think that until we get a few more decisions that side with the Houston Methodist arguments, I would as an employer be hesitant to blanketly rely on that. As an employer, I’d like to see a few more courts side with that judge; and I’d like to see it happen in a few different parts of the country. For better or worse, courts will view things differently. So if I’m an employer in California, I wouldn’t put a huge amount of stock in that case, given that a different court could rule differently.

What will happen in the coming months in this area?

I think you’re going to see more and more employers require vaccination. Before the mask mandates started to come off, after the vaccines came out, you saw a lot more employers shift to mandating vaccination. So especially with the Delta variant out there, you’re going to see a lot more employer vaccination. And where you’ll really see it is organizations that hire subcontractors, they’re all requiring subcontractors to require people to be vaccinated. So I think you’ll see more and more employers requiring vaccination.

Is there any chance that some sort of case might make its way all the way up to the U.S. Supreme Court?

Where it’s the government acting, as with the Department of Veterans Affairs, I could see those cases going up to the Supreme Court. Where it’s private employers, as long as you’re following the ADA [Americans with Disabilities Act]—I see that less—though they might take an interest in the healthcare sphere.

So you’re referencing a disabled employee who can’t get access to vaccination?

Correct. If an employer takes the position that we have an overwhelming business need that you be vaccinated, I could see the termination of an employee who is disabled and can’t get vaccinated, being reviewed by a court. Putting that aside, if there were going to be a Supreme Court ruling, it would come on the public side.

And your questions are really good ones, and they’re hard ones to answer. Look at the Houston Methodist case: if you have employees who want to stand on evangelical beliefs, Texas is probably a pretty good place for you; but it’s also generally very employer-favorable.

So in jurisdictions that aren’t as employer-favorable, that case might have turned out differently?

I think that’s case. There are courts in other parts of the country that don’t side as uniformly with employers as Texas courts generally do. But even outside the healthcare industry, there are employers who are increasingly requiring vacation now.

Will there be lawsuits?

I think there will be lawsuits around an inability to be vaccinated due to disabilities or religious beliefs, and are terminated. But it seems clear to me that an employer can continue

It will be interesting to see who tries to claim a religious exemption but puts Qanon content in their filings.

Yes. You mentioned the Amish example, where their beliefs were sincere and were long-held. Now, what about accommodations, such as a weekly negative test? Were there things they could have done, short of termination?

A lot of hospitals will face this. What happens if, say, it involves a critical care nurse working in the ICU? Could the hospital reassign that nurse to, say, a step-down unit, or even an area with little direct patient contact?

You said exactly what I was going to share. If you have a critical care nurse who absolutely refuses to get vaccinated, the first thing I would do is to see if I can put her into an area of the hospital where she’s not caring for ICU patients, perhaps you could require a weekly test of that nurse. And a vaccine mandate will come into contract negotiations with unions. So if you’re negotiating with a union, you’re going to have to negotiate with the union as to the vaccine mandate itself, how it’s going to work, all those things. You’re going to have to engage in the collective bargaining process with the union.

[California] Governor [Gavin] Newsom requiring vaccination for state employees and healthcare workers, or weekly testing—that, too, has just been announced. The thing is, if a government or other employer offers the accommodation of being tested weekly, that’s an accommodation of the type where I can’t imagine that someone could claim such an accommodation to be oppressive.

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