By: Ellis L. Bennett

Earlier this year, President Biden announced that all adult Americans would be eligible to get one of the Covid-19 vaccines approved for Emergency Use Authorization (EUA) by the FDA no later than May 1, 2021. Given that vaccines are now widely available, employers are grappling with various issues, including bringing employees back into the workplace. 

Various issues associated with employer-imposed vaccine requirements are almost certain to be litigated in courts around the country over the coming months and year, and the results of the litigation may change the landscape. However, the current prevailing view is that employers may impose vaccine requirements upon employees.  

Employers considering mandatory vaccine requirements should be aware that the Americans with Disabilities Act (ADA) and the religious discrimination protections of Title VII of the Civil Rights Act of 1964 come into play – in short, meaning an employer may need to grant certain employees a “reasonable accommodation” from the vaccine requirement if the employee requests an exception to a mandatory vaccine policy because of a disability as defined by the ADA (or state law equivalent) or due to religious beliefs. 

Unless the ADA (or a state law equivalent) is implicated for a given employee(s), which would require employers to engage in a reasonable accommodation analysis (a process beyond the scope of this article), employers may consider imposing an across-the-board Covid-19 vaccine requirement. In doing so, though, employers should be aware that this is uncharted territory because the FDA has never before granted an EUA for a population-wide vaccine, and as a result, there is no clear precedent at this juncture. Nevertheless, historically, employers have successfully imposed mandatory vaccine requirements for employees. These mandatory requirements have generally withstood legal scrutiny historically, primarily because of the important public policy of ensuring safety in the workplace. The same rationale should apply to Covid-19 vaccination policy.  

At its core, an employer-mandated vaccine requirement is a safety measure. When implemented to protect the health and safety of an employer’s employees, clients, and others in the workplace, such policies outside of the Covid-19 context have historically fared well in the face of court scrutiny. The same should hold true in the Covid-19 context; however, litigation that will test this view has yet to be decided, and employers should therefore keep their eye on the status of court ruling in this area.  

If an employer believes a mandatory Covid-19 vaccine policy is in the best interest for purposes of workplace safety, it should feel confident in its ability to draft and implement a mandatory Covid-19 vaccine policy. Mandatory Covid-19 policies, as a general rule, should be permitted just as other workplace requirements are given that employment across the United States is primarily at-will. This means that in the absence of applicable contractual restrictions, employers generally have wide discretion in setting workplace rules and policies. If an employer makes the decision to implement a mandatory vaccine policy, the assistance of experienced counsel is advisable given the related ADA issues that may require accommodation in certain instances. Additionally, the assistance of counsel is advisable given the ever-changing landscape that may well change over the coming months. Again, employers should keep abreast of decisions that may impact their rights in this space over the coming months. 

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Ellis L. Bennett is a partner at Dunlap Bennett & Ludwig. Ellis’ practice is focused on civil litigation, including complex construction disputes, and employment law, as well as security clearance review and government contractor suspension and debarment. He is an experienced trial lawyer, having tried well over 100 cases, and is co-chair of the firm’s litigation group. Immediately prior to joining Dunlap Bennett & Ludwig, Ellis was in private litigation practice in Washington, D.C. He has litigated a variety of complex matters in the state and federal courts of Virginia,Washington, D.C., and West Virginia; including commercial disputes, contract disputes, non-compete disputes, employment disputes, trade secrets cases, construction cases, medical malpractice cases, and professional architectural and engineering malpractice cases.

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