EEOC published more guidance saying employers can mandate COVID-19 vaccinations.  The “fine print” behind the attention-grabbing headlines finds serious questions unanswered.

Continues exploring mandatory COVID-19 vaccines for workers.

The EEOC updated its COVID-19 Frequently Asked Questions (FAQs) on the cusp of the Memorial Day Holiday Weekend, the unofficial “kick-off” to summer.  The Biden Administration and State Governments make no secret of their desire to get all Americans vaccinated so we can get back to “normal” (whatever that means).

Taking the broad view, contrasting approaches to vaccination incentives resemble a high school science experiment:  officials are trying different approaches to see what works best.  Krispy Kreme offers free donuts; Ohio offers a million-dollar lottery; Indiana offers free Girl Scout Cookies at selected sites; Miami offers a “shot” for a “shot” (free liquor to those 21 or older).

Some believe (that would be me) the CDC announced its sudden “no mask needed if vaccinated” guidance on May 13 to spur folks to get vaccinated.

Full Disclosure:  I got the COVID-19 vaccine as soon as I could.  I embraced the choice to reduce my risk and the risk I presented to others.  I decided to vaccinate.  And I also decided to still wear a mask in public, limit group settings, wash my hands frequently and keep my distance from others.  But that was my personal choice.  And I deeply respect others who may make a different personal choice for “good” reasons, “bad” reasons or no reason.

Behind the Headlines:  The EEOC guidance seemingly gives businesses the right to mandate workers be vaccinated to keep their jobs.  Eat your broccoli or become unemployed!

The EEOC’s guidance leaves a good bit unanswered.  Read the fine print and you will find it.  Here’s my list (and I welcome yours):

  1. The EEOC writes that it has not addressed (and has no authority to address) what COVID-19 vaccines’ “Emergency Use Authorization” (EAU) means for vaccination mandates.  Some believe that the vaccines’ EAU status means that they cannot be mandated.  As “experimental drugs,” that makes a good deal of sense to me.   See my prior blog on this topic.
  2. The EEOC FAQs do not address the impact of state or local laws banning “vaccine passports” or banning worker vaccination mandates. According to U.S. News and World Report, as of June 1, almost a dozen states adopted laws addressing COVID-19 passports.  Many only ban local governments from adopting passport mandates, but at least one state (Arkansas) bans businesses from requiring proof of vaccination as a condition of employment.  See  S. News and World Report List of States.  Compare this to Santa Clara California’s recent COVID-19 health order requiring businesses to keep track of employee, contractor and volunteer vaccination status.  See Elizabeth Levy and David Wilson of Seyfarth Shaw, “Popping the Question:  Santa Clara Employers Must Ask About Vaccinations.
  3. The EEOC FAQs expressly require businesses to engage in an interactive “reasonable accommodation” process for employees claiming an exemption to vaccinations due to the workers’ sincerely held religious belief, covered disability or pregnancy.
  4. The EEOC FAQs also warn businesses that a vaccine mandate does not insulate the business from an “adverse impact” discrimination claim – a claim that a rule neutral on its face results in a disproportionate impact on people based on protected characteristics. To the extent evidence shows a disparate impact, the business may have a hard time establishing that a legitimate business interest required its vaccine mandate.  (After all, some businesses have been doing fine without vaccine mandates for the last 18 months.)

The COVID-19 Pandemic overturned all we once thought we knew.  The political and partisan overlay complicates a calm discussion of the significant policy issues and questions about individual rights.  For example, ironically, states claiming they act to protect “individual freedom” and proclaim “death to government tyranny,” are the states forbidding private individuals from exercising their rights to require employees and customers to be safe.  (Maybe Orwell was right?  “Some animals are more equal than others.”)

Several pending lawsuits will test vaccine mandates’ validity.  Expect more.  See “This Firm is Fighting Mandatory COVID-19 Vaccines with Legal Filings and Warnings,” ABA Journal (June 4, 2021).

The breathtaking speed by which COVID-19 vaccines were developed and distributed, and the complex issues they present in terms of individual choice and personal responsibility, caution us to be humble as we face these issues.

Hat Tips:  U.S. News and World Report; Elizabeth Levy, David Wilson and the team at Seyfarth Shaw; ABA Journal.

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