by Hannah Berookhim
From smallpox to HIV, the United States is no stranger to disease outbreaks. But it seems COVID-19 has affected every aspect of American life more than any other virus to date. While the country by no means has the greatest number of COVID-19 deaths per capita, it does lead the world in the total number of documented COVID-19 fatalities, crossing the 700,000 mark on October 1st, 2021. The repercussions of this reality are embodied in the now popular phrase, “the new normal,” as the U.S. has resigned itself to living (or, as some have put it, dying) with the COVID-19 pandemic. As the country reopens, businesses, like individuals, are learning how to adjust. For employers, this means deciding whether and how to incorporate precautions, such as temperature checks and mask and vaccine mandates, into their workplaces. Measures like mandatory temperature checks and physical distancing tend to be easier to enforce than masks and vaccinations, but compulsory vaccination in particular has been the greatest source of controversy, as claims of personal choice, bodily autonomy, religious freedom, disability, and vaccine injury have taken center stage in the realm of public debate. In addition to the concerns of a COVID-19 outbreak in the workplace, employers requiring vaccinations face protests, resignations, and even lawsuits from employees who refuse to get vaccinated.
Though vaccination hesitancy—defined by the World Health Organization as a “delay in acceptance or refusal of vaccines despite availability of vaccine services”—predates COVID-19, this pandemic has brought new members to the “anti-vax” movement and reinvigorated the related “anti-mandate” one. For the first time since it added the term in 2018, Merriam-Webster recently updated its definition of “anti-vaxxer” to mirror this development, shifting from “a person who opposes vaccination or laws that mandate vaccination” to “a person who opposes the use of vaccines or regulations mandating vaccination.” Both definitions stretch the term to not only include individuals who are against vaccination (whether of themselves or others) but also those who disapprove of laws requiring vaccination. The new definition is expanded further with the word “regulations” instead of “laws,” likely as a nod toward non-governmental institutions that are now requiring vaccinations as well. Hospitals, airlines, banks, and other businesses large and small have a number of reasons to push their employees to be vaccinated, such as desires to avoid massive outbreaks of infections in the workplace, more government-enforced lockdowns, or simply another wave of illness among consumers. A study from the University of Chicago’s Becker Friedman Institute for Economics surveyed 2.25 million businesses in areas with different shutdown regimes (or none at all) and found that individual choices, rather than local pandemic policies, were much more impactful in slowing consumer traffic. The study found that as the number of COVID-19 deaths increased, fear of infection returned as well, leading “traffic . . . [to drop] before the legal orders were in place.” Furthermore, surveys have shown that while many unvaccinated workers threaten to quit in the face of vaccine mandates, few actually do. However, with pushback from employees and a personal desire to avoid liability in mind, employers are still left to question the legality of requiring their employees to be vaccinated. If employers can mandate vaccines, then which law or laws give them this prerogative, and how can employers legally and logistically enforce vaccine mandates?
The statutory responses to these issues are still developing but, for the most part, it appears that employers may require employee vaccinations. In explaining the rationale and exceptions behind this determination, this article aims to act as a general guide on the economic impact, pros and cons weighing employers’ decisions, historical precedent, legality and enforcement, and future of vaccine mandates in the workplace.
In March 2020, most U.S. employees were sent home for two weeks to stop the spread of COVID-19, with mainly frontline workers left in place. When it became clear that the pandemic would not be resolved so easily, many businesses pivoted to a work-from-home setup or changed their in-person operations to comply with recommended COVID-19 safety measures. Some businesses—like exercise equipment retailers and telehealth companies—survived and even thrived, but others shuttered, and it is still too soon to know the full impact of the COVID-19 pandemic on the economy. Though the forecasted influx of bankruptcies never came, and fewer businesses filed for bankruptcy in 2020 than in 2019, it seems that businesses often avoided insolvency by simply opting to close. When closing was not an option, some businesses stayed open with the help of, among other things, stimulus checks, eviction moratoriums, federal student-loan payment freezes, and the paycheck protection program.
Unemployment also quickly became a concern, as some businesses no longer had customers or that could not work remotely were forced to furlough or lay off their employees. In April 2020, unemployment reached its pandemic peak of 14.8 percent, more than four times the record-low of 3.5 percent in February 2020. While that number has returned to the single digits—under 5 percent in September 2021—businesses that survived what was hopefully the worst of this pandemic now struggle to find workers, and the resulting labor shortage is fueled in part by would-be employees: specifically, individuals who have not returned to their pre-pandemic positions. Layoffs aside, the pandemic has given some employees other reasons to stop working. Among other things, closed in-person child and health services forced some people to withdraw from the workforce to take care of family members; others had to decide whether in-person jobs were worth the risk of infection.
Now, with schools and nursing homes largely reopened and vaccines available to all adults, resignees have new reasons for not returning to their pre-pandemic posts, while some job-seeking individuals face a “lopsided recovery” as different industries thrive and others remain behind. COVID-19 has changed consumers’ needs, and while it may be easy for a business to decide to change direction, trained individuals are not so malleable: “[d]ifferences in skills and qualifications limit the extent to which workers can easily transition to high-demand industries, leading to a mismatch of labor supply and demand.” For some, the work-from-home era translated into work-from-anywhere, while for others, lost wages from the pandemic forced them to downsize and relocate. Some former employees can afford to hold out on their old employers, demanding better wages and benefits for their returns, and still, others have decided to leave permanently in what Anthony Klotz, an associate professor of management at Texas A&M University, dubbed “the great resignation.” This is in response to several issues, including stagnant wages that fail to reflect rising costs of living, as well as a change in lifestyle or priorities inspired by self-reflection during the pandemic. Though the wage stagnation matter predates COVID-19, the pandemic has drawn more attention to, if not exacerbated, the problem. In a similar vein, rather than waiting any longer to be hired or find a job that meets their expectations, a significant number of people have chosen the entrepreneurship route and, in July 2020, the number of business applications reached an all-time high of 552,981, increasing over 90 percent from the year before.
The federal government has floated a few safety nets for businesses struggling to stay afloat throughout the pandemic, and state governments have made their own contributions. Senators in Wisconsin, for example, proposed a bill that would allow children under 16 years of age to work more: specifically, until 9:30 p.m. on school nights and 11:00 p.m. on others. While the bill was introduced in April 2021, before the labor shortage worsened and Klotz shared his prediction of “the great resignation,” some businesses “tapped into younger workers to plug their labor shortage,” a fact that proponents of the Wisconsin bill gave for its passing. However, given the impact that the pandemic has had on businesses, vaccines may prove to be a more effective solution, as they will likely be most conducive to getting both workers and consumers to life as it was prior to COVID-19, or at least to the best-case scenario of “the new normal.” Thus, not for the first time in U.S. history, employers are contemplating whether to require employees to show proof of vaccination.
Since serious diseases like smallpox and polio have been effectively eradicated in the U.S. with the help of vaccine mandates, it may be easy to forget the great impact that vaccines have had in recent history. Nevertheless, with the rollout of COVID-19 vaccines, anti-vaxxers have bandied about the phrase “vaccine passports” as part of their argument against mandates. Critics of this perspective point out that, like students at the start of academic terms, employees have been required to present proof of immunization before beginning or even continuing to work. They add that vaccine passports are not new and simply mirror vaccine requirements that were in place during previous outbreaks. For example, at the turn of the nineteenth century into the twentieth, employers played a role in eradicating smallpox by making immunization a requirement for employment. In fact, “[f]actories, mines, railroads and other industrial workplaces with tight quarters” were not alone in demanding proof of vaccination, as the government of Maine held that lumber workers had to show “a good vaccination scar.” Beyond employment law, the federal government’s power in vaccination cases has been at the forefront of debates about such requirements, particularly since Jacobson v. Massachusetts. Decided in 1905, this Supreme Court case upholds states’ authority to enforce their own vaccine mandates, affirming the use of police power to enforce reasonable regulations to protect public health and safety. Rejecting the defendant’s claim that he had a right to refuse Massachusetts’s smallpox vaccination program on the basis that it was an unreasonable invasion of his liberty, the court opined that “[a] spectacle would be presented of the . . . safety of an entire population being subordinated to the notions of a single individual,” ruling that the program had a real and substantial relation to the general welfare.
Today, the law supports workplace vaccine mandates that only allow exemptions for employees with disability-related or religious exemptions. These laws may evolve, but in the meantime, employers should understand their rights and protections, as well as recognize the pros and cons of requiring vaccinations, so they can adjust as necessary.
Practically speaking, economists, health officials, and corporate management view vaccinations as the safest, most effective way for employees to return to in-person work, but employers may nonetheless hesitate to require vaccinations for a number of reasons, including a fear of being liable to workers who claim adverse reactions. However, as with other Food and Drug Administration-authorized inoculations, the Pfizer-BioNTech, Moderna, and Johnson & Johnson COVID-19 vaccines are not likely to cause serious side effects. In any case, employers have several potential legal defenses to such claims. One example comes from historical and legal precedent, explained employment litigator Helene Hechtkopf; workers’ compensation has been the employee’s only recourse for other employer-required vaccinations, so “[t]here is no reason to believe a COVID-19 vaccine would be treated differently.” In the same vein, unvaccinated employees may become an added cost to their employers, because just as insurance policies deny coverage for injuries resulting from dangerous activities, insurers may penalize uninoculated employees for the threat they pose to public health. Moreover, with or without insurance, businesses would probably be safeguarded from mandate-related penalties, as an employee would bear the burden of proof to demonstrate negligence by their employer. Further, such a demonstration is far-fetched as employers generally do not administer vaccines themselves, and employment attorney Jonathan Crotty notes that “it is difficult to see how a plaintiff would demonstrate such negligence” when a third-party provider administers inoculations.
Nevertheless, some employers worry that vaccine mandates may alienate employees or cause a labor shortage. As mentioned earlier, however, these requirements generally do not push employees away. Rather, in industries like nursing homes, mandates are widespread, so vaccine-averse employees would have a hard time finding employment elsewhere. Furthermore, a recent Gallup poll showed that 38 percent of employees were opposed to vaccine mandates, while 62 percent were amenable. Still, some employers would rather not impose requirements, believing that they may be able to accomplish similar results as businesses with vaccine mandates, but without going to the same lengths. These are different from employers with primarily remote workers regardless of COVID-19 and employers whose workforces already have high vaccination rates; such businesses may be less inclined to require vaccines and are probably the most valid in seeing this as an unnecessary hassle or expense.
Short of businesses with few employees or plenty of space for social distancing, however, it seems unlikely that any other solutions would mirror the positive impact that vaccines would have. Employer mandates would likely serve the same function as school mandates in increasing vaccination rates and reducing the spread of preventable diseases. Though this may be less obviously beneficial compared to other business incentives, the aforementioned University of Chicago study points to the notion that, as COVID-19 fatalities increase, more individuals will choose to withdraw from everyday life, effectively shutting down the economy in a similar way to government-enforced lockdowns. Dorit Reiss, a professor at UC Hastings College of the Law, currently focuses her research and activities on vaccines, writing about a range of issues from vaccine mandates to tort and administrative issues related to vaccines. “By mandating inoculations, corporate America is taking action in a way federal legislators cannot,” said Reiss, noting that beyond requiring vaccines for its own employees, the federal government “probably doesn’t have the power to say everybody in the U.S. has to get vaccinated or pay a fine.” In this way, employers shoulder much of the responsibility in getting back to business as usual, but it is likely in their best interests, and the Biden administration wants to help.
In November 2021, the Occupational Safety and Health Administration (“OSHA”) released its emergency temporary standard, a vaccination-or-test policy for businesses of 100 employees or more. Less than a week later, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay, and OSHA has suspended its related activities as it waits for a further court order as of November 6, 2021. “We are fully prepared to defend this standard,” said Seema Nanda, the U.S. Department of Labor’s chief legal officer, and employment law attorneys still advise employers covered by the policy to prepare for the upcoming deadlines announced by OSHA. A similar rule from the Centers for Medicare & Medicaid Services has been challenged but is also likely to be upheld, requiring over 17 million healthcare workers to be vaccinated. Thus, employers worried about public backlash can still proceed to mandate employee vaccination as they would like, attributing their directives to the federal government and finding legal defense in older laws.
Labor law attorney and USC Gould School of Law lecturer Thomas Lenz stated that employers may impose vaccine requirements if they make accommodations for employees with disability-related or religious exemptions. As long as they follow the Americans with Disabilities Act and the Civil Rights Act of 1964, employers can require all employees entering the workplace to be inoculated. With this in mind, employers who “[allow] people with objections to get weekly testing instead of vaccination” as the emergency temporary standard provides will not be in violation of any rules. Furthermore, employers can rest assured that they will not be in breach of employees’ privacy in asking workers to provide proof of COVID-19 vaccination or negative tests.
Beyond checking proof of COVID-19 vaccination or negative tests, though, employers and employees are still left to question how healthcare measures will be enforced in the workplace. A union that represents over 800 employees for Google and its parent company, Alphabet Inc., “expressed concern over the exceptions to Google’s vaccine mandate, saying the company has provided insufficient details surrounding the exemption process.” Unions generally show strong support for workplace health and safety initiatives, including those arising from the COVID-19 pandemic and want a say in how measures like vaccine mandates are implemented. Indeed, labor unions are suing as a result of the Biden administration’s vaccine and testing requirements, not to reverse the rules, but to broaden their reach. They want the laws to cover more businesses and to make employers bear the monetary costs of COVID-19 protections. On the other side of the employment relationship, employers with the financial and logistical means can be creative with where they ask workers to operate: from their place of business, remotely, or both. For instance, Meta, a company of nearly 59,000 global employees, “will have a process in place for people who can’t be vaccinated for medical or other reasons.” Companies like American Express and Twitter are also using hybrid systems or work-from-home arrangements for employees who can work effectively remotely. Amtrak is one of a number of companies trying to prevent confusion about vaccination policies in part by requiring that all new hires get inoculated, and companies like BlackRock are taking more drastic measures by requiring all U.S.-based employees to report their vaccination status regardless of whether they continue to work remotely.
Overall, employment relationships in the U.S. operate under the presumption of at-will employment. For employers, this means that they “can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability.” Only one state, Montana, acts as an exception to this rule, as well as in contradiction with the OSHA policy. In May 2021, Montana governor Greg Gianforte signed Montana House Bill 702 into law, making the state the first to recognize an individual’s vaccination status a protected class, putting it in the same category as race, sex, religion, national origin, age, disability, and veteran status. This means that Montana employers will be in violation of the law if they “[refuse] employment, [bar] a person from employment, or [discriminate] in any term, condition, or privilege of employment based on vaccination status.” On November 16, 2021, about six months after the emergency temporary standard was introduced, Governor Gianforte addressed his constituents that “no employer in our state should use President Biden’s OSHA rule . . . as a basis for imposing illegal vaccination requirements on employees.” As per Governor Gianforte’s statement, this only applies to employment relationships within the state of Montana; employers in the rest of the country—at least those who are covered by the emergency temporary standard and even those who are not—should adhere to the vaccination-or-test for the legal and practical purposes as described herein.
The Montana exception is unique but may indicate a new chapter in the back-and-forth between federal legislators and local factions. Alongside the Biden administration, however, employers are waging their own campaigns to vaccinate their employees, and it seems that the law is on the side of employer vaccine mandates as long as businesses are fair and follow the current federal law. This is encouraging given how COVID-19 has affected and will continue to affect the economy; the best way to achieve a prosperous post-pandemic economy is likely through vaccinations, and vaccine mandates have been shown to help in protecting the country against all of COVID-19’s side effects. With vaccine mandates, some businesses have seen employee vaccination rates jump from less than 50 percent to nearly 100 percent. United Airlines provided one illustration of this when, 48 hours after its mandate, the amount of unvaccinated workers companywide shrank from 593 to 320. In October 2021, United Airlines reported that 99.7 percent of its 67,000 employees had complied with their requirement. In such cases, workplaces see declining infection rates and therefore a parallel decrease in labor shortages from illness.
At the same time, as the economy rebuilds, many people and institutions alike view COVID-19 as a “once in a lifetime” or “once in a century” pandemic, but disease specialists warn that this is not accurate. They predict that COVID-19 and its variants will not be the last pandemic that humans alive today will experience. A team from the biotechnology company, Metabiota, estimates that “there is a 22-28% chance that another outbreak on the magnitude of COVID-19 will occur within the next 10 years, and a 47-57% chance that it will occur within the next 25 years.” Thus, time is of the essence in overcoming this pandemic and preparing for the next one. For now, employers should follow the advice of most economists and implement COVID-19 vaccine mandates in the workplace. In the midst of this crisis, employers are playing a large role in moving the economy forward, and while the law here is not entirely black and white, it is clear that most businesses are within their rights to enforce employee vaccination. Both employers and the government should look to the past to see how the country has survived other outbreaks. They can find guidance in documents like the Obama administration’s “Playbook for Early Response to High-Consequence Emerging Infectious Disease Threats and Biological Incidents” and take further inventory in the tools that have helped them through this pandemic. With this knowledge, businesses and federal and state governments can set safeguards in place. Then, the country will be better prepared for future pandemics and have a better, clearer, easier way forward, with workplaces continuing to play a pivotal role.
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 Id. at 37-38.
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