A User’s Guide: What Employers Should Know When Implementing a Private Vaccine Mandate Policy

Now that the U.S. Supreme Court has struck down the OSHA ETS requiring vaccination or weekly testing for private employers with 100 or more employees, many private sector businesses may choose to implement a vaccination mandate policy on their own. Private employers should be aware of the below information to ensure they create legally compliant vaccination requirements, including supporting case law, state-by-state limitations, and practical tips to help draft thoughtful and compliant mandatory vaccination policies.

First, Let’s Recap the Reasons to Implement a Private Vaccination Mandate Policy

There are numerous reasons why an employer may decide to require its employees to be vaccinated. Some employers, in anticipation of the OSHA ETS, already instituted policies or mandates in compliance with the ETS and may wish to avoid “whiplash” among its workforce in changing its policy yet again. Still others may wish to implement vaccine requirements because of their belief it is good policy or wishing to reduce the potential for business disruption from increased absences of staff and greater threat of hospitalization, serious infection and longer hospital stays.

Other employers may wish to impose a vaccination and/or mask mandate out of concern for potential future government action seeking to protect employees from COVID-19 infections.  This could include Congressional action, which Justice Neil Gorsuch noted in his concurring opinion in National Federation of Independent Business, et al. v. OSHA, et al., Case No. 21A244 (January 13, 2022). But that seems unlikely in a Congress which cannot seem to even agree when it is High Noon.

Alternatively, state, or local statutes could mandate vaccinations. If so, the Courts will give those vaccination mandates greater deference pursuant to a state’s inherent police power. See, Jacobson v. Massachusetts, 197 U.S. 11 (1905). Or employers may be concerned about the Department of Labor’s stated threat to potentially enforce vaccination as a violation of OSHA’s General Duty Clause of the OSH Act following the Supreme Court’s ruling. That clause requires businesses to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Here is what John Fox wrote in 1977 (back when he first became a practicing OSHA lawyer) to describe the “General Duty Clause” in the first book in this country published on OSHA, a two-volume treatise the New York Law Journal Press titled: “A Practical Guide to the Occupational Safety and Health Act: Law Principles & Practices” (citing to OSHA’s Legislative history):

“The general duty clause [what became Section 5(a)1 of the OSH Act] in this bill would not be a general substitute for reliance on standards but would simply enable the Secretary to ensure the protection of employees who are working under special circumstances for which no standard has yet been adopted.” p. 114, Vol 1.

So, while it seems preposterous to those not trained in OSHA General Duty Clause case law decisions, it is entirely feasible for OSHA to bounce back and argue, employer-by-employer, that “special circumstances” exist requiring mandatory vaccinations, testing, and face masks. The Secretary could go after vaccination mandates “retail,” rather than “wholesale” via a standardized Vaccination Rule. Indeed, the Secretary’s attempt in its OSHA ETS to regulate public health generally, rather than focus its Rule down to the safety and health risks employees face in the workplace, was part of the problem the SCOTUS cited in striking down the OSHA ETS. See our story above reporting the SCOTUS ETS opinion. Indeed, SCOTUS credited the CMS at HHS for closely focusing its Interim Final Vaccination Mandate Rule on the health care provider industry.

Following Secretary of Labor Marty Walsh’s threat in his post-decision “statement” to enforce General Duty Clause vaccination violations, (see Puzzle Box, above) employers with “special circumstances” are now on notice: “OSHA is coming,” with violation citations in hand. The problem is most employers do not have the foggiest idea what “special circumstances” give rise to a General Duty Clause violation in the absence of a specific OSHA standard. The “special circumstance” which comes immediately to my mind is NFL Football. Guys breathing heavily on each other, colliding with each other often, regularly including dog piling, standing side-by-side and belly-to-butt on the sidelines, and for hours on the field. This is even before you think about the pre-game and the post-game locker rooms, and shared shower rooms with dressing room closets causing players to line up shoulder-to-shoulder to undress, dress-out, undress, and dress again. Or, if they happen to be playing “away,” getting back on the team bus, or team airplanes, again in close confines in shared air. OSHA could have a field day with that “special circumstance.” 

Second, Recent Case Decisions and Law Related to Business-Created COVID-19 Vaccine Mandates

The federal courts have generally upheld as lawful and enforceable private employer vaccination mandates. The Courts have found private employer vaccination mandates to enjoy judicial deference as part of an employer’s right to contract as a private entity and to set the terms and conditions of employment. The only generally applicable proviso the Courts have imposed is that employers must respect any other applicable legal limitations (i.e., non-discrimination laws; contract rights of union Members, etc.). Recent court cases related to COVID-19 vaccine mandates confirm that private parties creating vaccine mandates at their discretion are the least susceptible to legal challenge than government mandates. However, employers must be aware of statutes some states have recently passed to limit vaccination mandates.

Soon after the federal Food and Drug Administration (FDA) granted emergency authorization for the use of COVID-19 vaccination shots, the U.S. District Court for the Southern District of Texas rejected claims by employees seeking to enjoin a vaccine mandate the Houston Methodist Hospital sought to impose on its healthcare staff. Bridges v. Houston Methodist Hosp., Case No. 4:21-cv-01774 (S.D. Tx. June 12, 2021). In its decision, the court noted that Texas law only protected employees from termination for refusing to commit an act carrying criminal penalties. Since an obligation to be COVID-19 vaccinated was not an illegal act under federal or Texas law, it was proper for the Houston Methodist Hospital to impose discipline against those refusing vaccination. Furthermore, the Court found that statutes on which the plaintiffs sought to rely to strike down the private mandate were inapplicable to the hospital as a private entity. 

Similarly, in Harsman v. Cincinnati Children’s Hospital Medical Center, et al., Case No. 1:21-cv-00597 (S.D. Oh. September 30, 2021), the U.S. District Court for the Southern District of Ohio rejected claims the employer’s vaccine requirement violated the employees’ constitutional rights. The United States Constitution acts as a limit on only state and federal government action, of course, so the Court quickly found the Constitutional claims were inapplicable to a private employer like the Children’s Hospital. Significantly, the court also rejected the employees’ argument that a vaccine mandate amounted to compelling vaccination against an employee’s will. This is because the court reasoned an employee is free to choose to comply with the employers’ conditions of employment or can choose other avenues of employment if the employee disagrees. This is known as “at-will” employment.

Even as recently as this month, the Louisiana Supreme Court found a vaccine mandate a private employer implemented to be permissible. In Hayes v. University Health Shreveport LLC, Case No. 2021-CC-01601 (La. January 7, 2022), the court rejected both objections plaintiffs put forward to their employer’s vaccine mandate. First, plaintiffs’ argument that taking a vaccination would violate medical informed consent law by compelling medical treatment was inapplicable since those laws pertained to healthcare provider-patient relationships, not employment relationships. Second, like the decisions in the Harsman and Bridges case decisions outlined above, plaintiffs’ claim of a constitutional right to privacy to not have to reveal vaccination status applied only to state actors, not private entities. Thus, the court found there was no exception to the state’s at-will employment doctrine that applied to a COVID-19 vaccine mandate. Therefore, the University Health Service could terminate an employee for failing to comply with its vaccination mandate.

The U.S. Supreme Court has also routinely declined to accept and hear appeals of similar rulings in other cases employees have filed when attempting to block vaccine mandates their employers have installed.  See Klaassen v. Trustees of Indiana University, Docket No. 21A15 (August 12, 2021); Maniscalco v. New York City Dept. of Education, Docket No. 21A50 (October 1, 2021); Dr. A., et al. v. Hochul, Docket No. 21A145 (December 13, 2021).

While courts have largely permitted employers to privately impose vaccine mandates, certain states have attempted to restrict the right of a private employer to do so.  Thus, businesses creating vaccine mandates need to ensure compliance with recent state laws requiring certain opt-outs, or exemption requirements, to any such mandate.

Third, 13 States Have Now Jumped Into the Fray Over Employee Vaccination Mandates

For now, only two states have specifically prohibited private employers from discretionarily imposing vaccine requirements on their employers. Thus, businesses in Tennessee and Montana are precluded from voluntarily imposing vaccine requirements on their employees.

Eleven other states as of this writing (January 14, 2022) require that any vaccine mandate a private employer imposes provide certain exceptions. The identified list below relates to states imposing actual laws specifically as to private employer vaccine mandates only. It is important for private employers to remember that even if a state has not specifically created a law requiring exemption for medical reasons or sincerely held religious beliefs (37 states and the District of Columbia have stayed silent on private employer vaccine mandates), non-discrimination laws such as Title VII of the Civil Rights Act of 1964 and/or the state ancillary laws still operate on the employer to provide such an accommodation. A catalogue of the eleven states and their caveats follows:

• Alabama: Requires employers imposing vaccine mandates to allow employees to claim an exemption from vaccination for medical reasons or sincerely held religious beliefs.
• Arizona: Requires employers provide reasonable accommodation to employees with sincerely held religious beliefs, practices, or observances that prevent the employee from becoming vaccinated unless such accommodation would pose an undue hardship and more than a de minimis cost to the operation of the employer’s business.
• Arkansas: Employees permitted to opt out of vaccine requirements if they test weekly or can prove they have antibodies for the virus (i.e., “natural immunity”).
• California: The Department of Fair Employment and Housing, the state agency tasked with enforcing California’s anti-discrimination law, issued guidance specifically permitting private employers to require vaccinations as not violative of the Fair Employment and Housing Act. The only two requirements any such mandate requires are accommodation for (1) religious beliefs and (b) for medical disabilities.
• Florida: Employers are prohibited from imposing a vaccine mandate unless employees may opt out based on a religious reason, medical exemption, natural immunity, regular testing, or agreement to use Personal Protective Equipment in the workplace (“PPE”).
• Iowa: Must permit exemptions for medical reasons or religious beliefs.
• Kansas: Must permit exemptions for medical reasons or religious beliefs.
• North Dakota: State government entities are prohibited from requiring a private business to obtain documentation of an individual’s vaccination status, presence of COVID-19 antibodies, or post-transmission recovery status before employment. Private employer vaccine mandates must exempt employees for a medical condition, religious belief, philosophical belief, moral opposition to vaccination, or who submit proof of natural immunity, or agree to periodic COVID-19 testing.
• Texas: Employer vaccine mandates are prohibited unless it permits employees to opt out for any reason of personal conscience, religious belief, medical reasons, or prior recovery from COVID-19.
• Utah: Must permit exemptions for medical reasons or religious beliefs.
• West Virginia: Requires any employer vaccine mandate to exempt applicants or employees who present a certification of medical exemption signed by a medical professional or a notarized certification of religious exemption.

Fourth, Practical Tips for Implementing a Valid Vaccine Mandate Policy

Employers outside of Montana and Tennessee desiring to implement their own vaccine mandate requirement must ensure the following:

1. Draft Vaccination Policy to Notify Employees

Employers should (but are not required to) prepare a written policy to provide advance notice to its employees of the requirements the employer has established. The written policy, at the very least, should include:

• Notice of what the company is requiring;
• What opt-outs or exemptions the company is permitting, including your position on all the exemptions states (above) have ordered and including your expectation of employees in specialized jobs (who work ONLY from outside the office) or (going the other way), who travel on business;
• A definition of what constitutes “fully vaccinated.” The OSHA ETS’ definition of “full vaccination” did not include booster shots. Employers who want to require the added protection of booster vaccine shots may want to include receipt of a booster as constituting “full vaccination.” Also, you need to make clear your position whether you will accept a prior positive COVID-19 virus infection and recovery (and the antibodies that infection produced) as the equivalent of one-shot or booster;
• Discussion regarding the provision of reasonable accommodations and the process for the employee to obtain any such accommodation;
• Description of what documentation an employee must provide the employer;
• Procedures related to handling of positive COVID-19 diagnoses;
• Reservation of the company’s right to amend, withdraw, or enforce the policy;
• Information about any sign-in requirements when working on-site (to aid COVID-19 contact tracers and to potentially limit the number of employees who might have to be quarantined should an outbreak occur in your workforce) despite your vaccination mandate and your other safety and health precautions; and
• A reminder the company will not retaliate against any employee reporting a positive diagnosis of COVID-19, or who reports a violation of the policy.

And, of course, if the employer is unionized, you will have to consider which aspects of your policy trigger a mandatory duty to bargain (including whether you must bargain about the effects of any state law mandates or discretion the statutes repose to the employer).

2. Incorporate Accommodations and Exemptions from Vaccination

At the very least, employers should ensure any vaccine mandate includes an exemption for those individuals the company determines have (a) a religious belief which the employee holds sincerely, or (b) a medical condition that precludes vaccination. Given the requirements of complying with non-discrimination laws, employers need to also include such opt-outs at a minimum to protect against religious and disability discrimination claims. 

Whether an employer should allow for other opt-outs or exemptions, like some of the state laws noted above, rests on two main questions. First, is the employer located in a state that has explicitly required additional exemptions in compliance with statutory law? If so, the employer has no discretion and must add those additional exemptions to comply with the state statute.

Second, if the employer is not located in a state mandating opt-outs, does the employer face concerns of potential staffing shortages due to vaccine hesitancy in the workforce? If so, as a practical matter it would behoove a business not to include additional exceptions to assure vaccine-hesitant employees and alleviate potential employee departures. A company whose workforce is already 95% vaccinated has less concern about business disruptions from loss of staffing from a vaccine policy than a company located in a locale with greater vaccine hesitancy.

Employers should be aware of several concerns related to permitting more and more exemptions.  For example, the more exemptions the employer permits, the less potential protection they are providing in the workplace. Additionally, if an employer permits moral or philosophical objections to vaccination, the headache caused by attempting to interpret a reasonable objection on those grounds may be difficult for Human Resources to administer. 

Moreover, if an employer chooses to permit employees to opt-out of vaccination if they provide, perhaps, a weekly negative COVID-19 test, the employer should consider the issues related to test cost and availability. Contrary to the OSHA ETS, which required employees to bear the cost of testing, it is more likely than not that many state employee reimbursement laws will require employers to bear the costs of a COVID-19 test. Should an employer require testing outside of a government mandate, costs must be borne by the employer (as it would be “equipment” an employer requires of an employee as a term and condition of employment). Check your state law on “employee costs reimbursement” requirements. Also, check with your insurance carrier to see if your medical plan covers employee testing costs. Additionally, given the shortfalls in production of COVID-19 tests and the delay in authorization for certain tests by the FDA, an employer may need to take on the administrative burden to locate and perhaps supply the necessary quantities of vaccination tests and pay for them (and potentially even masks) depending again on state law governing employee business cost reimbursements.

3. Ensure an Interactive Process to Evaluate Accommodations

Employers must ensure they comply with statutory and case law decision requirements to engage in an “interactive process” as to any reasonable accommodation requests they receive for sincerely held religious beliefs or medical conditions. Per the EEOC, this requires an employer to analyze the job involved, consult with the requesting individual to ascertain the precise limitations imposed, consult with the individual regarding potential accommodations and assessing the effectiveness of each, and consider the individual’s stated preference when implementing the accommodation that is most appropriate. Employers should rely upon their experience dealing with accommodation requests unrelated to COVID-19 to inform their handling of vaccination exemption requests.

As to accommodation requests due to a sincerely held religious belief or practice, the EEOC has offered guidance to employers and an example of the form the EEOC itself uses to channel employee requested accommodations. As a practical matter, employers should:

• Rely on their personal knowledge as to the individual to know the person’s religious belief history;
• Have HR become familiar with popular “fake” forms available on the internet being used as justification for religious accommodation;
• Know they can request a written narrative explaining the basis for the individual’s religious objection;
• Ensure the objection is based on an actual religious belief, as opposed to a political ideology or a sentiment for personal freedom; and
• Request a letter or comment from the individual’s religious leader verifying the individual’s religious belief if the employer has an objective, reasonable basis to question the individual’s sincerity (BEWARE: legally risky business!).

As to accommodation requests based on an individual’s medical condition, the U.S. Center for Disease Control (CDC) has issued guidance as to considerations for vaccination based on various health conditions. Generally, there is a very limited set of medical conditions that suggest delaying vaccination against COVID-19; most deal with an allergy to vaccine ingredients, or current infection with COVID-19. During the interactive process, an employer may request documentation from a treating physician substantiating the existence of a medical condition precluding vaccination. If documentation is insufficient or unclear, an employer may request an employee to consent to consultation with another treating physician.

4. Consider Protective Precautions for Those Opting Out of Vaccination

To ensure maximum safety precautions in the workplace, employers may wish to maintain social distancing and PPE requirements popular in first-generation COVID-19 Return to Work policies for those not vaccinated. Prior protections related to cleaning, social distancing, remote work, or face covering will provide the added safety as to unvaccinated employees employers seek in the workplace when instituting a vaccination policy.

5. Adopt Comprehensive Recordkeeping Requirements

To document compliance with any vaccination policy, employers must maintain the necessary records to verify vaccination and evidence for exemption from vaccination. Employers must also ensure they maintain these records as “medical records” and keep them confidential and separate from an employee’s personnel file.  Records may include, among others:

• Evidence of full vaccination status;
• Accommodation requests and documentation related to engagement in the interactive process;
• If an employer requires testing to opt out of vaccination, records of test results;
• Identification of COVID-19 positive employees and documentation supporting return to work;
• Documentation required for maintenance by local and federal public health authorities (necessary regardless of implementation of a vaccination policy); and
• Locations and resources for vaccination information and shots.

6. Respond Appropriately to Documentation Requests

Employers should be aware that employees are entitled to access their medical information in the possession of their employer. Furthermore, regardless of any vaccination policy, local and state public health agencies have instituted employer notice requirements to employees of potential COVID-19 exposure from positive cases in the workplace. When providing such information pursuant to request, employers need to comply with the Health Insurance Portability and Accountability Act (“HIPAA”). This requires not disclosing a specific employee’s medical information to other employees. Thus, employers responding to medical information requests should ensure the information provided is specific to the requesting employee. Furthermore, when providing notice of potential COVID-19 exposure, employers must “hide” the identity of infected individuals.

7. Provide Paid Time Off for Vaccination and Its Effects

The guidance of most state wage-hour divisions has noted that time off for purposes of getting vaccinated, or recovering from any side-effects of vaccination, are subject to paid time off policies employers provide. Time off to recover from potential side-effects is typically also covered by any sick leave or family leave laws applicable to an employer. Thus, employers must establish paid time off availability to employees getting vaccinated or suffering effects from vaccination during work hours.

8. Follow Public Health Guidelines in Terms of Positive COVID-19 Cases

Finally, employers should familiarize themselves with the local or state public health guidance related to quarantine and when an infected individual can return to work upon a positive COVID-19 diagnosis. For example, California recently updated its Cal/OSHA Emergency Temporary Standard related to COVID-19 to reflect, among other things, updated isolation periods depending on an individual’s vaccination status. Thus, employers should set return to work timelines following infection based on applicable local public health instructions.

As noted above, there is an abundance of information an employer must consider when instituting a vaccination policy within its workplace. However, provided an employer complies with the requirements related to providing accommodation, any such policy is likely to pass legal muster as a contractual agreement between private parties. Employers interested in instituting such a policy should consult with their employment counsel to ensure compliance with the requirements described above.

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