The question of mandatory vaccinations has been circulating around the internet, and so has a lot of misinformation. We will focus on private employers in this article, as public employment is a little more complicated. In general, the question has been, “Can a private employer require an employee to be vaccinated against Covid-19?” The simple answer: yes, a private employer can mandate a vaccination and can terminate an employee who does not want to be vaccinated with few exceptions.
The problem is there are many different opinions on whether this is true or not. A simple Google search will bring you to documents and articles from the media and the legal and medical communities. Some say yes, some say no. In the end, it all comes down to interpretation of 21 U.S.C. § 360bbb-3. This is the federal law that allows for the Emergency Use Authorization (EUA) of new vaccines. The language is a bit confusing, stating that people must be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” This has been interpreted by some publications as meaning employees “must have the option to accept or refuse.” Yet, other publications have said there is nothing in the law preventing the mandating of vaccinations. So what’s the right answer?
At least one Federal Court in TX has very pointedly answered this question. In an opinion issued by United States District Judge Lynn N. Hughes of the Southern District of Texas, it is made very clear that a private employer can mandate its employees to receive the Covid-19 vaccine even though it has been approved under an EUA and is not fully approved by the Food and Drug Administration (FDA).
The facts of Jennifer Bridges, et al. v. Houston Methodist Hospital, et al. are simple. Jennifer Bridges and other members of the Hospital’s staff did not want to get the Covid-19 vaccine, while the hospital made it a mandatory part of employment. While the initial reasons cited in the complaint were over the top, Judge Hughes was not moved. In fact, Bridges went as far as to compare the administration of vaccines under an EUA to the experiments Nazi doctors performed on concentration camp prisoners during WWII, calling it a violation of the Nuremberg Code. That is just plain crazy.
In the end, Judge Hughes held that a private employer may compel its employees to be vaccinated, even though the Covid-19 vaccines are not fully approved by the FDA. This is in line with the opinions of the EEOC and Fed OSHA. EEOC feels that requiring an employee to be vaccinated is not discriminatory, as long as it does not infringe other rights based on a protected class. Similarly, Fed OSHA does not believe it’s a workplace hazard to require employee vaccination, although employers will be required to record any adverse effects in an “OSHA 300 log” that lead to the employee missing more than one day of work, require medical treatment beyond first aid, or (iii) result in restricted work activity or transfer to another assignment.
Furthermore, employees with closely held religious beliefs or medical conditions preventing them from being vaccinated may be exempt, as long as any reasonable accommodations do not cause undue hardship to the employer. However, as of the start of the 2022-2023 school year, Connecticut will end religious exemptions.
Judge Hughes was very clear. The law does not prohibit private employers from requiring vaccinations. Moreover, the law does not prohibit the termination of employees who do not receive a vaccination and do not qualify for an exemption. Now, this is only the first decision released pertaining to this topic. I’m sure there are many more to come. Nevertheless, I believe this will be the road map going forward.
This is a confusing and controversial topic. If you have questions or concerns about an employer mandated vaccine policy, please give us call. We can help you understand the policy, the consequences, and help you navigate any reasonable exceptions.