I. Introduction:
Late last week, 117 hospital workers sued Houston Methodist Hospital in a Montgomery County, Texas court, challenging the hospital’s requirement that they get the COVID-19 vaccine as a condition of continued employment, unless they had a medical or religious excuse. The lead plaintiff, Jennifer Bridges, was a registered nurse at the hospital and objected to being vaccinated on the grounds that the vaccine is still experimental and that workers were being used as human guinea pigs to test an unproven vaccine. One issue, is that COVID-19 vaccines have been approved for Emergency Use Authorization (“EUA”) only, but are still pending final approval by the United States Food and Drug Administration (“FDA”). Nevertheless, the Occupational Safety and Health Administration’s (“OSHA”) regulations place a general duty on all employers to provide a safe and healthy workplace free of known hazards, which includes taking precautions against the spread of COVID-19 in the workplace.[1] Moreover, the Equal Employment Opportunity Commission (“EEOC”) has stated that as long as EEO laws are not violated, an employer may mandate that employees be vaccinated against COVID-19. But, how does conflicting legal authority and diverse public opinion affect an employer’s ability to institute programs to maintain a safe workplace, including encouraging or mandating that their employees be vaccinated against COVID-19?
Over fifty percent of adult Americans have been fully vaccinated against SARS-CoV-2, the coronavirus that causes the disease known as COVID-19 (the “Virus”).[2] Nevertheless, some individuals continue to have difficulty obtaining access to a vaccine, others cannot get the vaccine due to medical or religious reasons, and still, others want to exercise their right to refuse to submit to being vaccinated for personal reasons. On May 28, 2021, amid diverse public opinion, the EEOC issued additional guidance on when and how employers can initiate and enforce a company-wide vaccination policy.[3] The updated guidance was released at about the same time as the Centers for Disease Control (“CDC”) updated its guidance for fully vaccinated people, allowing those individuals to shed their masks in most public settings. To make matters even more challenging, OSHA has continued to investigate employers who have been reported for not following sufficient safety protocols to reduce the spread of COVID-19 in the workplace.
Equally problematic, is the fact that agency guidance is constantly being updated, making some employer policies obsolete soon after implementation. For example, the new CDC guidance for fully vaccinated people explains that the evidence shows that the COVID-19 vaccines are highly effective at protecting people against developing symptoms of the disease, as well as preventing transmission of the Virus to others. See www.cdc.gov. Fully vaccinated individuals no longer need to wear masks or socially distance in the majority of public settings, although there are some exceptions. Fully vaccinated people no longer need to self-quarantine nor get a COVID-19 test by virtue of a known exposure to the Virus, unless they experience symptoms. Accordingly, many vaccinated employees want to shed their masks and resume life as it was pre-pandemic, but not all people or employees have been vaccinated. The challenge for employers is to maintain a safe and healthy workplace, while at the same time protecting the rights of their employees. Accommodating conflicting employee needs and demands is not easy; however, an understanding of the various legal requirements will be helpful in attempting to strike that balance.
II. New Guidance for COVID-19 Management in the Workplace:
The EEOC issued additional guidance on May 28, 2021, making it clear that EEO laws do not prevent employers from requiring or incentivizing employees to be vaccinated against COVID-19, as long as the requirements of those EEO laws are not violated. The primary EEO laws of concern are Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”). Employers may offer incentives to employees to get vaccinated or to share their personal information on whether or not they are vaccinated, as long as that information is kept confidential. Incentives can be in the form of offering voluntary participation in on-site vaccinations, monetary bonuses, time off or other promotional programs that do not discriminate against those who choose not to participate.
To be sure, there are obstacles to mandatory COVID-19 vaccination work policies, even in the healthcare setting, which have hindered the enforcement of workplace vaccination requirements. This includes the fact that the vaccines are currently approved for Emergency Use Authorization only, but have not yet been given final approval by the FDA.[4] The lack of final FDA approval for these vaccines is the subject of several lawsuits, one of which has been filed against Houston Methodist Hospital. For now, employers may wish to focus on:
making sure that employees who wish to be vaccinated have access to the vaccine by eliminating financial and other barriers that include: (1) allowing employees paid days off to get vaccinated and to recover from possible side effects; (2) making sure that employee vaccination and related medical information are kept confidential as required by the ADA; and (3) accommodating employees who refuse to be vaccinated based on medical, religious or other personal reasons. Employers must make sure that while considering the diverse needs of its employees, employers continue to institute policies and procedures to reduce the spread of the Virus.
Section 5(a)(1) of the Occupational Safety and Health Act (known as the “General Duty Clause”), requires an employer to furnish to its employees “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . .” See 29 U.S.C. 654(a)(1). OSHA will conduct investigations when there are: (1) imminent dangers; (2) employee injuries, illnesses or deaths; (3) worker complaints; (4) federal or state agency referrals for workplace investigation; and (5) targeted inspections of industries that have been identified as high-risk for certain problems. In the pandemic crisis context, this might include the meat packing industry where employees must work for long periods of time very close to one another in poorly ventilated conditions. Generally, the employer must be aware of a known hazard that can cause death or serious physical harm, and there must be a feasible and useful method to correct the hazard. With respect to ensuring workplace safety during the pandemic, OSHA has not developed its own specific rules. Instead, OSHA refers employers to the CDC website for guidance on recommendations and procedures to protect employees from contracting the Virus. Employers should remain current on the various updates to the CDC website.
III. Title VII and ADA Considerations:
Employers with fifteen or more employees must comply with the requirements of federal EEO laws under Title VII and the ADA. In Texas, similar requirements and protections for employees exist under the Texas Commission on Human Rights Act (“TCHRA”).[5] Instead of the EEOC, Texas state anti-discrimination laws are enforced by the Texas Workforce Commission (“TWC”). Employers with 15 or more employees are legally required to consider, and when feasible, provide accommodations to those employees who for medical reasons cannot get vaccinated, or for religious reasons object to receiving a vaccine. An employer must engage in a case-by-case analysis of each situation in which an employee refuses to receive a COVID-19 vaccine so as not to run afoul of federal or state anti-discrimination laws.
- Medical Reasons to Refuse Vaccines under the ADA. When an employee states that he or she cannot receive the vaccine for medical reasons, such as an allergic reaction, the ADA requires the employer to show that an unvaccinated person presents a risk of substantial harm to others that cannot be eliminated or reduced by reasonable accommodations that will not present an “undue hardship.”[6] When an employee requests an exemption from vaccination, the employer must engage in an “interactive process” with that employee to consider potential reasonable accommodations, such as working apart from others or working at home before terminating that employee. The company may request supporting documentation when necessary to confirm the medical reasons for vaccine refusal.
- Religious Objections to Vaccines under Title VII. Under Title VII, if an employee states that he or she will not obtain the vaccine based on a sincerely held religious belief, practice or observance, the employer must evaluate whether a reasonable accommodation exists that would not result in an “undue hardship” for the company.[7] Accommodations may include moving the employee to a different position with less contact with people or allowing the employee to work from home, when feasible. When a reasonable accommodation that would not present an undue hardship on the employer does not exist, or is rejected by the employee, in some situations, the employer may exclude the employee from the workplace.
Practice Tip – Due to the fact that the FDA has not yet given final approval for use of the COVID-19 vaccines, employers who desire to encourage workplace vaccination against the Virus may wish to use incentive programs, instead of mandates that may be challenged under an EUA only claim.
IV. Fifth Circuit Precedent on Accommodations to Vaccine Refusal:
Once the COVID-19 vaccines obtain final FDA approval, employers may be more aggressive in insisting that employees, at least those who will be in close contact with vulnerable populations, get vaccinated. Historically, employers such as hospitals and healthcare providers have required workers who will be in close contact with vulnerable patients to get a Flu vaccine as a continued condition of employment, absent a verifiable medical reason for refusal. Weber v. Roadway Exp., Inc., 199 F.3d 270, 273 (5th Cir. 2000). The Fifth Circuit in Horvath v. City of Leander, had an opportunity to evaluate a firefighter’s refusal to get a TDAP vaccine to protect against Tetanus, Diphtheria and Pertussis a/k/a Whooping Cough. In Horvath, the plaintiff was a driver/firefighter for the City of Leander’s Fire Department, which included first responder duties for medical emergencies. Id. at 789. He refused to take the TDAP vaccine on religious grounds. 946 F.3d 787, 789 (5th Cir. 2020). Horvath was given two options for accommodation: (1) to transfer to a code enforcement position, or (2) to wear a respirator mask during his shifts, keep track of his temperature and submit to medical testing. He rejected both options and was subsequently fired for insubordination. The city refused Horvath’s request to remain in his current position and wear a respirator mask only when assisting patients who were coughing or who had a history of communicable illness. Id. at 789-790.
Horvath was fired for violating the city’s Code of Conduct, and sued the city for alleged violations of Title VII, the Texas Commission on Human Rights Act and his First Amendment Free Exercise Rights. Id. at 790-791. The Fifth Circuit affirmed the lower court’s judgment as a matter of law for the city. Although the employee may have established a sincerely held religious belief for which he needed an accommodation, the city offered evidence that Horvath turned down two reasonable accommodations, and was fired for failing to comply with the city’s vaccine directive. Id. at 793-794. The fact that a new work schedule would have reduced Horvath’s income due to his inability to accept outside work, did not make the alternative job offer unreasonable. Id. at 792.
V. Conclusion:
During the continued COVID-19 pandemic, employers are faced with the daunting task of maintaining a safe and healthy workplace under OSHA regulations, while at the same time not running afoul of the rights afforded to employees under various other laws. Lack of FDA final approval for use of COVID-19 vaccines has also resulted in legal challenges to mandatory vaccination programs, despite the EEOC’s guidance permitting employers to require vaccines as long as EEO laws are not violated. For now, vaccination incentive programs may be the preferred choice for employers. This includes allowing employees to take paid days off to get vaccinated and to recover from any side effects of the vaccine, as well as monetary incentive programs that pay bonuses to employees to get vaccinated. Employees who refuse to get vaccinated must be accommodated when feasible, and need to be protected through continued use of masks and social distancing.
The information contained in this article is not designed to address specific situations. If you have questions concerning this topic, you may contact me directly or consult with other legal counsel for advice on fact specific matters.
Robin Foret is a Managing Member at Seltzer, Chadwick, Soefje & Ladik, PLLC, and is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization. Robin Foret is a frequent speaker and writer on employment law compliance topics. She also provides training for companies to assist them comply with federal and state employment laws. She can be reached at rforet@realclearcounsel.com or by telephone at (469) 626-5358. You may also visit the website for more information about our law firm’s services at www.realclearcounsel.com.
[1] See Occupational Safety and Health Administration regulations at www.OSHA.gov.
[2] Fully vaccinated has been defined as two weeks following the second dose of the Pfizer or Moderna vaccines, or two weeks after a one dose vaccine such as Johnson and Johnson. See Interim Public Health Recommendations for fully vaccinated people, updated May 28, 2021 at www.cdc.gov.
[3] See updated technical assistance press release on 5/28/21 at www.EEOC.gov.
[4] The FDA is responsible for ensuring that vaccines are safe and effective according to scientific standards. EUA is a method the FDA uses to facilitate the availability of medical countermeasures during health emergencies such as the COVID-19 pandemic or to treat life-threatening diseases when other treatments are unavailable. See www.fda.gov.
[5] See Chapter 21 of the Texas Labor Code.
[6] See 29 C.F.R. 1630.2(o).
[7] See 42 U.S.C. § 2000e-2(e)
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