As COVID-19 vaccines roll out across the country, some employers are requiring that employees receive one as a condition of employment. Disney and Google recently announced that workers will be required to show proof of vaccination. Walmart also announced it will require corporate office employees to be vaccinated—although the mandate does not apply to store and warehouse workers who comprise the bulk of Walmart’s 1.6 million U.S. employees.
When considering such a mandate, employers must navigate various local, state and federal laws aimed at protecting individuals’ health and privacy. To help employers comply with federal equal employment opportunity laws should they choose to implement a mandate, the Equal Employment Opportunity Commission updated its COVID-19 technical assistance resource in December 2020 and May 2021. Examples of federal EEO laws include the Civil Rights Act, the Americans with Disabilities Act and the Rehabilitation Act.
There are not only other federal laws that are relevant here, but also state and local laws that may be relevant. —Sharon Rennert, Equal Employment Opportunity Commission
The first EEOC guidance noted that EEO laws do not prohibit employers from imposing a vaccine mandate, but that employers must address several issues, including providing reasonable accommodations for workers who, for medical or religious reasons, decline a vaccine. Federal law protects these workers’ jobs to an extent, but not unconditionally. The EEOC resource navigates these complexities through a series of questions and answers.
Although the EEOC guidance applied only to federal laws under the agency’s purview, major media outlets and legal experts quickly asserted the EEOC had declared employer vaccine mandates to be legally permitted. In fact, the legality of employer vaccine mandates remains unclear. The COVID-19 vaccines are currently authorized only for emergency use, and the Food and Drug Administration requires that patients be informed of their “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.” A June 2021 federal district court rejected the argument that the vaccine’s emergency-use status prohibits a private employer from mandating employees receive it as a condition of employment. A Kaiser Family Foundation article explores the legality of vaccine mandates from governments and private employers.
Clarifying Agency Authority
When the EEOC updated its technical assistance resource in May 2021, it clarified some misconceptions about the agency’s authority to declare vaccine mandates “legal.” The updated guidance states, “Indeed, other federal, state, and local laws and regulations govern COVID-19 vaccination of employees, including requirements for the federal government as an employer.”
NCSL spoke with Sharon Rennert, a senior attorney at the EEOC, about the updated resource and what she wants state policymakers to know. “There are not only other federal laws that are relevant here, but also state and local laws that may be relevant,” Rennert says. “And that’s the message we are trying to get across to employers. It’s a good thing to check in with the EEOC, but we want them checking in on a state and local level as well.”
And in fact, states are acting on their own to address vaccine mandates. Seven states and Puerto Rico announced that all state employees must show proof of being vaccinated or undergo regular testing. New York and New Jersey will be instituting mandates for certain state employees, such as health care and transit workers. And Washington is the first state to require all state workers be vaccinated or face termination, a consequence other states have avoided for now as it can bring with it legal risks and the added challenge of hiring new workers. Instead, unvaccinated state workers generally must undergo COVID-19 testing at least weekly and wear a mask in the workplace. Making work a little more uncomfortable rather than terminating employment may help employers balance workplace safety with the ongoing labor shortage.
At least seven states have taken a different approach by seeking to limit employer vaccine mandates. Alabama, Arkansas, Arizona, Florida, Tennessee and Utah enacted legislation prohibiting state and local government agencies from requiring individuals to receive a vaccine, including as a condition of employment by the government. Montana took it a step further prohibiting all employment discrimination, including in the private sector, on the basis of vaccine status. Several of these new state laws exclude health care workers or health care settings where vaccine mandates have long been a workplace norm.
The EEOC technical assistance is a valuable resource that covers not only compliance issues related to COVID-19 vaccinations, but several other employment matters where COVID-19 prevention efforts interact with federal EEO laws. But it is important to note that the EEOC can only provide guidance on the federal laws and regulations under its jurisdiction. Other employment-related federal entities like the Occupational Safety and Health Administration may have unique positions on vaccine mandates. In fact, OSHA released its own technical assistance in April 2021, noting that employers mandating vaccines must log adverse reactions as work-related incidents. A month later, the agency announced it would temporarily suspend enforcement of this requirement through May 2022.
Mandating that workers receive a vaccine as a condition of employment will likely remain a focus of employers and policymakers as the world continues to battle COVID-19 and tries to safely return to the workplace. Navigating the legal complexities at local, state and federal levels remains imperative to ensuring compliance with relevant laws and regulations. NCSL will continue tracking this and other pandemic-related issues as states respond to the coronavirus and its impacts on their citizens.
Josh Cunningham is a project manager in NCSL’s Employment, Labor and Retirement Program.