Over the last year and a half, employers have had to face many challenges they never expected, and while many have finally gotten the hang of modified recruitment, hiring practices and hybrid work schedules, the COVID-19 vaccine has thrown a whole new curveball their way. In the latest episode of the DE Talk podcast, DirectEmployers Executive Director Candee Chambers sat down with employment law attorney Jay Wang of Fox, Wang & Morgan P.C. to discuss vaccine mandates, how employers are currently handling them, and what’s to come as the pandemic continues to progress worldwide. Check out this snippet of the conversation and be sure to listen to the full episode through your preferred podcast provider for full guidance!

 

Candee Chambers:

Talking about stances on vaccines, employers all across the nation have taken various stances. Some are making a vaccine a condition of employment and that was kind of interesting. I had one of our Members say, “How can I put this in a job description?” Some are strongly encouraging it… We have monthly staff meetings, and I literally said, “I’m begging you. I’m not mandating it, but I’m begging you to get a vaccine.”

Some companies are suggesting that, kind of like me, that you get a vaccine, but they’re not making that a requirement. There are companies like Morgan Stanley, Goldman Sachs, Wells Fargo, I think Walmart, and other companies that have now mandated that all workers must get vaccinated, or share their vaccination status before they return to the office.

Then others, like General Electric, have said they’re not going to make those requirements because they don’t want to complicate global operations. Some are saying you have to have a negative test. It’s going to be interesting, but I think all employers, and you kind of hinted at this, think about the legal minefield that they’re going to find themselves in. Let’s just start here. I want to give you a series of questions, so are COVID-19 vaccination mandates legal?

 

Jay Wang:
Generally speaking, yes. Even before the COVID-19 pandemic, vaccine requirements have been supported by regulatory rule, state and federal statute, and Supreme Court case decision. I know a lot of people like to site Jacobson V. Massachusetts. This is where I’m going to get a little bit into the “legalese”. I’ll try to keep it as short as possible, but there is case law as well as regulations related to the right of employers to require vaccination in the workplace. Jacobson was a case where the Supreme Court basically upheld the power of state legislatures to require vaccinations. In 1922, the Supreme Court then ruled on a different case upholding school vaccine mandates. So, these mandates have been in place.

What you’ll see though, is that the discretion is wider and more available for private employers than it would be in regards to legislation or mandates. I speak about this Jacobson case. I’ll talk about it a little bit more when we start talking about what the Biden administration just announced last week in regards to mandating vaccines, but in regards to private employment relationships, there’s been great discretion, a great leeway provided to private parties, in regards to how they manage their relationships, how they determine who they want to work with, who they want to have as an employee, and interact with, or have represent them. That leeway has generally existed. Now, to be clear, there’s certain caveats you want to make sure are in place, and we’ll get to those, I imagine, when we get further into this podcast.

 

Candee Chambers:
Well, I’ll tell you what, in my position, I’ll just come right out and tell you, the thing that scares me about putting a vaccination mandate in place is losing employees. I don’t want to lose people that I know have strong opinions, some I understand, some I don’t, but that kind of cripples me from making people get their vaccination. It’s a difficult position to be in for any employer. Do you see any particular risk for employers who mandate the vaccinations?

 

Jay Wang:
Yeah, so there’s three particular risks I’ve seen in advising clients or reviewing certain cases that have come up or issues that have come up. I think the three issues, the main issues I’m seeing the first one, and to be clear, these are legal issues – the first one is how to determine whether that exemption request is appropriate. If the person does have a good faith religious belief, a sincerely held religious belief, to request an exemption from the vaccine mandate, or whether they have a medical condition that precludes them from receiving the vaccine. That’s the first issue…

 

Find out what other issues employers face when requiring vaccinations, what Biden’s recent vaccine mandate means moving forward, and what incentives (and burdens) employees are facing during these unparalleled times by listing to the full conversation – you don’t want to miss this one!

Kacie Clark
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