Vaccine Mandates | What Workers Can Do

Can Pennsylvania employers require their employees to take the COVID vaccine? For most employees, the answer is probably “yes”. There is ample precedent for employers mandating vaccines in certain fields, such as flu shots for healthcare workers in hospitals. Indeed, the Occupational Safety and Health Administration (OSHA) in the past has said employers have the right to mandate vaccines. The EEOC has also published guidance stating that federal equal employment opportunity laws do not prevent employers from requiring employees who physically enter the workplace to be vaccinated for COVID-19. There have been several lawsuits by employees challenging employer vaccine mandates. In addition, President Biden issued an executive order directing OSHA to develop an emergency temporary vaccine mandate standard directed at private-sector businesses with 100 or more employees that is estimated to impact over 80 million workers. This has not yet taken effect but workers whose employers might fit within this rule should be prepared.

Many of these lawsuits were based upon the COVID-19 vaccines being authorized only under an Emergency Use Authorization (EUA). However, the U.S. Department of Justice (DOJ) has released a memorandum opening that the Food, Drug, and Cosmetic Act (FDCA)—which authorizes a EUA for a vaccine—does not prohibit entities, including employers, from requiring a vaccine even if the vaccine is authorized for emergency use only. Further, one federal district court in Texas dismissed federal and state law claims brought by 117 employees related to their hospital employer’s mandatory vaccine policy. There are additional lawsuits pending. On August 23, 2021, the Food and Drug Administration (FDA) announced full approval for the Pfizer-BioNTech COVID-19 vaccine, which will undercut some arguments made by employees that mandating this vaccine is prohibited.

However, state law may prohibit employers from requiring vaccines or prohibit it in certain circumstances. Currently, Pennsylvania does not have such a law. Several states have proposed legislation prohibiting mandatory vaccination policies. Montana currently prohibits employers from discriminating against a person based on the person’s vaccination status. Other states have proposed similar legislation. Again, some of these laws are tied only to vaccinations that have emergency use authorization, which will no longer apply if the FDA grants full authorization to all vaccines. Collective bargaining agreements or employment agreements also may impose additional requirements.

Employee Protections

At least two federal discrimination laws may provide some protection for employees who oppose taking a vaccine. Under Title VII of the Civil Rights Act of 1964, a sincerely held religious belief against taking a vaccine could serve as the basis for a religious exemption. See December 5, 2012, EEOC Informal Discussion Letter: Title VII: Vaccination Policies and Reasonable Accommodation. Under federal law, sincerely held religious beliefs “include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Moreover, the term “religion” includes all aspects of religious observance and practice, as well as belief.

But this doesn’t mean that an employee can get a free pass just because they personally or philosophically do not agree with receiving the vaccine. The U.S. Supreme Court has differentiated religious beliefs from those personal beliefs that are “essentially political, sociological, or philosophical.”

In addition, under the ADA, the employee could assert that they have some disability that prevents them from taking the vaccine, such as a sensitivity or allergy to something in the vaccine. Even anxiety to taking a vaccine could conceivably constitute such a disability. Not all employers are required to comply with the ADA. Private employers with 15 or more employees, state and local government employers, employment agencies, labor organizations, and joint labor-management committees are “covered entities” for purposes of the ADA. Even if an employer is covered, they can decline a request for accommodation if it would result in undue hardship on the employer or poses a direct threat to the health and safety of others.

What Workers Can Do

If your employer imposes a vaccine mandate, here are a few of your options:

• Seek a vaccine exemption or accommodation on medical grounds.

• Seek a vaccine exemption due to sincerely held religious beliefs

• Ask for alternative accommodations such as using personal protective equipment, or to transition to remote work.

• If no accommodation is available, consider asking for an unpaid leave of absence until rules or circumstances change.

If your employer has adopted a mandatory COVID vaccine policy, we can help you understand your rights and plan your response. Please contact our knowledgeable team of employment law attorneys today.