A COVID Vaccine Mandate: Legal Considerations

April 13, 2021
Posted in Blog
April 13, 2021 Rob LaHayne

The availability of the COVID-19 vaccine has become a catalyst for return-to-work planning and has some organizations wondering if a vaccine mandate can (or should) be implemented.  According to the CDC, no federal requirement or mandate currently exists regarding vaccinations, but instead state and local authorities are granted this right under the separation of federal and state powers specified in the US Constitution. It’s essential for organizations to look at the legal nuances and analyze the context of their business’ as they consider a vaccine mandate. We’ve put together a list of legal factors for employers’ to consider as they decide on a vaccine policy.

"According to the CDC, no federal requirement or mandate currently exists regarding vaccinations, but instead state and local authorities are granted this right under the separation of federal and state powers specified."

Employer Guidance for Mandating Employee Covid-19 Vaccinations

The EEOC issued employer guidance last December stating that employers generally can require their employers to receive the vaccination against COVID-19 prior to granting them permission to return to worksites. Title VII of the Civil Rights Act of 1964 also notes that exemptions based on medical and religious factors also need to be granted per state and local laws. Employers must also take caution with regards to pre-screening health inquiries and avoid disability-related questions protected by the ADA Act (employers cannot require divulgence of medical histories supporting medical exemption requests).

Federal Policies 

Under the US Fair Labor Standards Act (FLSA), employees must get paid for their time away from work to obtain mandatory vaccinations. Two clauses in the US Constitution grant authority over vaccines to the federal government. These are the Commerce Clause and the Spending Clause, which together enable Congress to incentivize states to mandate vaccinations through federal financial assistance. Under the Public Health Act (Section 361), the federal DHHS head has the power to institute measures to contain foreign-originating communicable diseases from the US and between states. This Act also specifies that the federal government – while not granted the authority to quarantine individuals determined to be infected with a contagious disease – can take actions to isolate them to prevent infection spread.

State Policies 

Some states have demonstrated a strong overall commitment to deregulation, including not establishing (or reversing) regulations requiring public health interventions such as vaccinations.  States also retain the authority to enact regulations additional to federal regulations related to private health plan coverage.

In addition to medical and religious exemptions, 18 states also allow exemptions from adhering to state-mandated vaccinations based solely on personal reasons while 17 states allow personal reasons for childhood vaccination exemptions in schools and childcare centers (as well as exemptions based on medical and/or religious reasons). Notably, at least 21 states mandate certain vaccinations for healthcare workers, but major state-to-state variations exist.

To Mandate or Not to Mandate? 

It’s important to evaluate the practicalities of your business when considering a vaccine mandate. Creating a policy that is specific to your type of business, location, the profiles of your employees & customers and taking into account both state/federal policies is necessary. Some employers also may opt to create a mandate that only applies to roles that are more public facing than others, and may do so as long as they create the policy under nondiscriminatory reasoning (i.e. age, sex).

Due to the number of legalities involved, it’s strongly advised to bring in a legal expert prior to putting a mandate in place. Once a mandate is developed, it’s essential to document the policy and distribute it among your employees.

Mandate or no mandate, it’s encouraged to educate your employees as to the benefits of receiving a COVID-19 vaccine. Besides self-protection, this health educational campaign aimed at reluctant employees could include presenting the benefit of COVID-19 vaccination in protecting the employee’s co-workers, family members, and the surrounding community.

Workplace Protection

Taking into consideration that not all employees may be able to receive the vaccine, it’s essential to implement safety protocols and measures during this transitional period. The best strategies to guard against a workplace COVID-19 outbreak is to require face-mask usage, social distancing, and other CDC-promoted “infection control” strategies. If located in a state that supports a public health regulatory environment, it is likely that your organization can mandate the strategies promoted by the CDC to prevent COVID-19 spread. If encountering employee resistance in states with few public health legal mandates, these states are also most likely to have a “hands-off” business regulatory climate – so that you can refuse to retain employees unwilling to adhere to “infection control” strategies instituted at the site(s) of your company or business.

To learn more about the legal factors to consider when deciding between a mandatory vs. voluntary vaccine policy check out our webinar, “The COVID Vaccine: Employee Rights & Compliance“. 

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Visit  www.touchcare.com/tc-shield/ for more information about how we can help your employees stay safe through the COVID-19 pandemic with services including return-to-work policy creation, COVID-19 testing, daily symptoms monitoring and reporting.

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