As companies call employees back to the physical workplace, more employers are electing to implement mandatory vaccination policies to keep employees safe amidst the spread of the COVID-19 Delta variant. In turn, some employees are seeking accommodations, asserting that disabilities or religious beliefs prevent them from being vaccinated. Employers should develop consistent standards for handling
Pressure is mounting on U.S. and multinational employers to require COVID-19 vaccines for employees, as the Delta variant spreads voraciously, spiking infections and hospitalizations across the country and forcing employers to once again shutter worksites or change their workplace safety protocols. But can (and should) employers mandate vaccination?
Vaccine mandates received strong support on Thursday, July 29 when President Biden announced that all civilian federal employees and onsite contractors either must be vaccinated or submit to regular testing, social distancing, mask requirements, and restrictions on travel. The same day, the U.S. Treasury Department released a policy statement directing state and local governments to use funds from the $350 billion American Rescue Plan to incentivize vaccines by offering $100 to individuals who get vaccinated.
Separately, more than 600 universities have announced mandates for students or employees. And state and local governments have joined in, with California and New York City announcing mandates this week for government employees and certain healthcare workers, and the federal Department of Veterans Affairs announcing that frontline VA health care employees must get vaccinated or face termination.
Large employers are joining the fray, with global technology companies, financial institutions, healthcare systems, retailers, transportation companies and media companies recently announcing that vaccination will be required for everyone in their workplaces.
So can private employers adopt mandatory vaccination policies? What follows is a framework for understanding whether such an approach is permissible both in and outside the US, as well as some of the key considerations for such policies.
Bottom line: in the US, private employers can legally mandate vaccines under federal law, subject to the legal considerations outlined below. State law, however, differs by jurisdiction, with some states authorizing vaccine mandates while at least one has banned them. For illustrative purposes, we discuss California law in the framework below.
A proposed bill in California seeks to protect workers against nondisclosure agreements and empower them to speak out about alleged acts of discrimination, including racism. Senate Bill 331, known as the Silenced No More Act, was introduced in February 2021 and seeks to expand protections against confidential settlements to cover all forms of harassment or discrimination under California law, including on the basis of race, ancestry, religion or gender identity. If passed, the law will impose greater restrictions on companies’ freedom to contract settlement and non-disparagement agreements.
New Obligations if SB 331 Passes
- SB 331 will expand the existing prohibition of provisions that prohibit discussing sexual harassment in the workplace to discussing any type of harassment (i.e., race, age, religious harassment). (See discussion of SB 820 below.)
- The law will prohibit non-disparagement agreements that prohibit the disclosure of information about unlawful acts in the workplace.
- The law also will create new obligations, such as the requirement to notify the employee that the employee has a right to consult an attorney regarding the agreement and giving the employee “a reasonable time period of not less than five business days” in which to do so.
Several Employer-Friendly Changes to Observe
- The law clarifies that including a general release or waiver of all claims in an agreement related to an employee’s separation from employment does not violate the statute.
- It verifies that the law does not prohibit a provision that precludes the disclosure of the amount paid in settlement of a claim.
- It confirms that employers may protect trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace.
We are pleased to share a recent Law360 article, “3 Ways To Protect Diversity If Layoffs Are Unavoidable,” with quotes from Mike Brewer. This article discusses three tips employers can use to help safeguard diversity when reductions in force cannot be avoided due to economic havoc caused by COVID-19.
Click here to view the article.
COVID-19 vaccinations have been administered in the US for several months now. Employers are considering their available options in order to push employees to get vaccinated as quickly as possible, especially considering recent concerns around the variants of the virus. In our Mandatory Vaccinations in the Workplace 2.0: Spring 2021 Update video, we continue to…
As a result of the pandemic, many companies have been forced to consider layoffs and furloughs. In this video, our Labor and Employment attorneys discuss how employers should approach such cost-cutting measures to ensure they are not discriminatory and to avoid allegations of differential treatment.
Click here to watch the video.
Employers are busy putting together return-to-work plans and deciding whether they should mandate employee vaccination or simply encourage it. Before creating a uniform vaccination policy, it’s imperative to understand the legislative landscape in each jurisdiction where the employer operates, especially regarding the freedom to mandate vaccines, require proof of vaccination, etc.
While most employers will not be surprised to hear that mandatory vaccination is permitted under the ADA, except for employees with disabilities or sincerely-held religious beliefs, a recent surge in state legislation may call this general rule into question. This pending legislation varies from requiring employers to use government-approved vaccines to outright bans of any consideration of vaccination status, as summarized below. (This information is current as of March 24, 2021.)
For the last year, employers have faced unprecedented challenges navigating the impact of the pandemic. Keeping up with scores of new laws, evolving standards, shelter-in-place orders (see our tracker here), quarantine restrictions and more has meant no rest for the weary. And, in the backdrop, there’s the looming threat of employment litigation arising from…
Government agencies are increasingly setting their sights on larger targets, ramping up enforcement efforts to root out systemic discrimination. This has important ramifications for employers who may suddenly find themselves defending a claim that, for all intents and purposes, feels like a class action, even though it started as an individual agency charge. With advancements in technology, large data sets on workforces are more common than ever, and government agencies are taking advantage of this and will not hesitate to request data on classes of individuals to search for trends indicating potential discrimination.
EEOC Intensifies Campaign against Systemic Discrimination
In her first public speech since being named as Chair of the EEOC, Charlotte Burrows pledged that the federal government’s workplace civil rights agency will emphasize enforcement of laws to combat systemic discrimination. This commitment to addressing systemic discrimination is consistent with President Biden’s plans to combat racism. (In January, Biden signed an executive order creating a government-wide “racial equity review” and underscoring enforcement of anti-discrimination laws. Read more here.)
As the country awaits confirmation of Judge Merrick Garland, President Joe Biden’s pick for attorney general to head the U.S. Department of Justice, employers in the U.S. should begin to consider what a Biden administration DOJ might mean for their workplace.
Biden has appointed…