United States: Mandating Vaccines

Question: Can law firms mandate vaccines?
Answer: Maybe, Maybe Not.

In the United States, there is no easy and straightforward answer to the question of whether law firms, or for that matter, any employer, can mandate the COVID vaccine. It is a very relevant issue and one with which most law firms are struggling with. At the moment, most law firms are yet to mandate vaccines for their employees – lawyers or staff. And here’s why.

FEDERAL LAW

In the U.S., there is no national standard or rule addressing the question of mandatory vaccines.
Typically, decisions such as this are within the purview of each state, and the states are all over the road on whether to allow or require vaccine mandates. Thus, while there is no definitive federal mandate addressing this issue, we do have three federal agencies whose activities are influential on this question.

Those agencies are:

1. the Center for Disease Control -- otherwise known as the CDC --which is charged with providing guidance and rules on disease, such as the COVID-19 pandemic;
2. the Federal Food and Drug Agency or FDA, which is charged with ensuring the safety of among other things, vaccines; and,
3. a subagency of the U.S. Department of Labor called Occupational Safety and Health Agency, or OSHA, which is tasked with overseeing the health and safety of workplaces, including law offices.

A quick review of the activities and guidance of these three agencies, provides some light on the general trends in the U.S. regarding mandatory vaccines.

The FDA has approved at least three vaccines (Phizer/BionTech, Moderna and Johnson & Johnson), but these approvals are “emergency use authorizations,” and one of the conditions of “emergency use” is that the vaccine must be voluntary.

For some, this ends the discussion of whether employers can mandate vaccines; voluntary means voluntary, and therefore employers cannot mandate. At this time, that is the position taken by many employers and most law firms, but not all. Others, however, reason that employers are not forcing employees to get the vaccine; they are merely telling employees that if the employee wants to continue working at that particular, PRIVATE place of employment, they must be vaccinated. Therefore, in this sense, whether to take the vaccine is an individual choice and purely voluntary.

Phizer/Biontech and Moderna, however, have already sought to convert the emergency use authorization to regular use approval, at which time the “voluntary” requirement falls away. At that point, there will be no federal prohibition on mandating vaccines, and the question of whether vaccines can be mandated, in law firms and other workplaces, will be left to each state to decide.

Aside from the FDA, neither the CDC nor OSHA have provided much guidance on the issue of whether vaccines can be mandated. The CDC has stressed the importance of vaccination and what to do to protect oneself if one is not vaccinated, but it does not address whether mandatory vaccinations are legal and/or or appropriate. Similarly, OSHA also provides guidance on how employers can keep their workplaces safe, but it too fails to weigh in on whether vaccines can be mandated.

The health and safety of all workplaces is subject to OSHA rules, regulations and guidance, regardless of whether that workplace is a meat packing plant, a construction site, a hospital or a law office.

According to OSHA’s “General Duty” clause, all employers must maintain a workplace which is free from “recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. OSHA has interpreted the “General Dut”y clause to include addressing COVID-19, and has issued detailed guidance that applies to law firms and all other workplaces, and required employers to follow the CDC guidelines.

During COVID there was much debate over whether OSHA should issue a regulation specifically focused on COVID. OSHA has the power to issue an Emergency Temporary Standard” if it is necessary to protect workers from a “grave danger” and the “General Duty” clause is insufficient to protect workers. Until very recently, however, OSHA, refused to issue such a temporary standard, relying instead on the  “General Duty” clause to protect employees. In 2020, a lawsuit that was unsuccessful sought to have the court order OSHA to issue an Emergency Ttemporary Standard. However, following direction from President Biden in 2021, OSHA recently issued an Emergency Temporary Standard addressing COVID-19, which becomes effective July 5, 2021, but the new standard applies only to health care workplaces. All other workplaces – including law firms – remain subject to the “General Duty” clause.

STATE LAW

In addition to federal guidelines and vague standards, all 50 states also have their own rules, regulations and guidelines addressing the issue of mandatory vaccines. Even if mandating vaccines is allowed by
federal law by virtue of regular use approval of the vaccines, it is the States which can mandate – or prohibit mandating – vaccines.

It is well settled law in the U.S. that states can mandate vaccines, and once the vaccines are approved for non-emergency use, it is anticipated that many states will require vaccines and/or will permit employers and others to require vaccine “passports” or proof of vaccination. However, there are other states – generally those in the South and the middle of the country – which will not permit COVID-19 vaccine mandates or which will prohibit conditioning employment on having a vaccine. For example, Florida has prohibited vaccine passport requirements that would allow any business to condition access based on proof of vaccination, based on individual privacy and freedom considerations.

MEDICAL AND RELIGIOUS EXCEPTIONS TO VACCINE MANDATES

Even if states allow an employer to mandate vaccines, and even if employers do impose such mandates, there are two notable exceptions under the Federal discrimination laws that require employers to accommodate disabilities and religious beliefs.

Under the Americans with Disabilities Act, employers cannot discriminate against those with disabilities and, typically, employers must make a “reasonable accommodation” for people with disabilities. This might, for example, include providing a ramp for wheel-chair bound employees or a chair for those with trouble standing. Under the ADA, then, an employee who, for medical reasons, cannot receive the vaccine, generally cannot be required to take the vaccine and cannot be subject to discrimination because of his or her inability to be vaccinated.

Similarly, there is an exception for employees whose “sincerely held religious beliefs” prohibit them from getting vaccinated. In the U.S., a “sincerely held religious belief” is interpreted broadly, well beyond the  traditional religions with which most people are familiar. All that is required is that the individual’s belief be “sincerely held.” In such case, the employee who objects on religious grounds generally would  not be required to get vaccinated and the employer could not discriminate against that employee for refusing the vaccination.

WHERE DO WE GO FROM HERE?

For the moment, employers, including law firms, are finding their way. Most law firms have taken a conservative approach and have not mandated vaccines. Some have offered incentives to employees, designed to encourage vaccination. Under federal law, such incentives, if they are de minimus, are allowed. Other firms are segregating employees who are vaccinated from those who are not, by floor, by section, by elevator, etc. Still other employers impose additional requirements on non-vaccinated employees; for example, requiring daily COVID questionnaires be filled out, mandating temperature taking each day, requiring face coverings, etc. As long as the employer pays employees for time spent in these activities, and provided they are not discriminatory, employers may undertake such distinctions between vaccinated and unvaccinated employees. It is important to note, that in the U.S., under federal law, employers CAN ask whether employees are vaccinated. In some states, however, this may be illegal.

In short, it is unclear whether mandatory vaccines and/or vaccine passports will be imposed in the U.S. Navigating the U.S. legal requirements must take into account the multiple federal and state obligations. Many states currently forbid such requirements. In any case, employers seeking to do business in the U.S. should seek legal advice from a lawyer well-versed in both federal and relevant state laws to ensure compliance and to ensure that employers are up to date on these rapidly changing legal requirements.

By Jacqueline R. Scott
UIA-IROL Director General
Fortney Scott
Washington DC, United States