With transmission of the Delta variant on the rise, many employers are revisiting plans to implement COVID-19 vaccination policies. As we have previously explained, employers may encourage and mandate vaccination against COVID-19, subject to exceptions for covered disabilities under the Americans with Disabilities Act and sincerely held religious beliefs under Title VII of the Civil Rights Act of 1964. Guidance that the U.S. Equal Employment Opportunity Commission (EEOC) recently issued has been consistent with this position and federal courts have recently affirmed the same.

Recent Federal Decisions

In June 2021, a federal district judge in Texas held Houston Methodist Hospital’s mandatory vaccination policy was “consistent with public policy” and not unlawful. The judge, therefore, dismissed the case brought by more than 100 nurses and other hospital employees. They have appealed to the Fifth Circuit Court of Appeals.

Since then, the U.S. Department of Justice issued a legal memorandum opinion definitively concluding that 21 U.S.C. § 360bbb-3 “concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.” In addition, Lloyd Austin, the secretary of defense, recently issued a memorandum to all U.S. Department of Defense employees stating that he has requested presidential approval to make vaccination mandatory for all military personnel by mid-September 2021 or possibly sooner if the U.S. Food and Drug Administration (FDA) fully authorizes the vaccine before then. Such full approval from the FDA could come any day.

In August 2021, in Klaassen v. Trustees of Indiana University, a three-judge panel of the Seventh Circuit Court of Appeals denied a motion by eight Indiana University students for an injunction prohibiting the university from enforcing its vaccine mandate. In a four-page opinion for the court of appeals, Judge Frank Easterbrook wrote that the university’s policy is clearly constitutional under Jacobson v. Massachusetts, the 1905 case in which the Supreme Court of the United States upheld a vaccine mandate for smallpox.

The short and blunt opinion did not determine the outcome of the case on the merits; the motion was only asking for an injunction while the appeal is pending. However, the language of the decision summarily denying the injunction leaves little doubt where the Court will likely land on the underlying issues if the case finds its way back to the court of appeals. The students have asked the Supreme Court for the same emergency relief, i.e., an injunction while the claims are fully litigated.

Update on State Legislation

Although the federal government has consistently upheld workplace vaccination policies, state legislators have been busy proposing legislation that could restrict mandates in some parts of the country. As of the writing of this article, 45 states have introduced legislation aimed at employer mandates, but just 7 such laws have passed. Most of these new or proposed laws affect public employers’ ability to mandate vaccination or reinforce existing federal laws regarding medical and religious accommodations. Only one state, Montana, has passed a law making vaccination status a protected category and prohibiting private employers from discriminating against unvaccinated employees. The likelihood of restrictive legislation passing in many states remains low, especially once the FDA gives its expected full approval of the vaccines.

In addition to state laws regarding employer mandates, employers may also want to continue to monitor developments concerning so-called vaccine passports. Although the majority of passport initiatives or restrictions generally apply to patrons, compliance with the same may require companies to reevaluate how they are addressing vaccination among their workforces. For example, New York City’s “Key to NYC Pass” COVID-19 passport rules will require patrons and employees of indoor restaurants, gyms, and performance venues to be vaccinated.

Managing Vaccinated and Unvaccinated Employees

Employers that have decided against mandates or are still weighing the pros and cons may be questioning the extent to which they can offer different terms and conditions of employment based on vaccination status. Except in Montana, policies that distinguish between vaccinated and unvaccinated employees are generally permissible (again, subject to medical and religious requests for accommodation).

Many employers would prefer to allow vaccinated employees to work without masks. Although the U.S. Centers for Disease Control and Prevention (CDC) initially advised that masking may not be required for vaccinated individuals, the CDC now recommends that both the vaccinated and unvaccinated wear masks in all areas with substantial and high rates of transmissions, which includes approximately 89 percent of the country as of August 11, 2021, according to the CDC’s COVID Data Tracker.

Other measures, however, may apply only to unvaccinated employees. For example, some employers are requiring unvaccinated employees to test themselves weekly or even more frequently, and requiring those employees to bear the cost of test kits. Such an approach is permissible, subject to minimum wage and pay deduction laws. In addition, access to company property or company-sponsored events may be limited to vaccinated individuals. Similarly, employers may consider offering paid quarantine leave to vaccinated individuals, but not unvaccinated individuals (subject to local and state laws); as of July 29, 2021, the CDC is recommending that unvaccinated individuals quarantine for 14 days following exposure to someone who has COVID-19 and vaccinated individuals do the same only if they have symptoms or have tested positive for COVID-19. These are just a few examples of policies and incentive options available to employers that wish to encourage, but not mandate, vaccination.

Of course, there is no one-size-fits-all approach, and industry-specific considerations come into play. For instance, retailers find themselves in a difficult position: how can they require employees to vaccinate if the same requirement does not apply to customers? With approximately 50 percent of the population not yet fully vaccinated, requiring vaccination for customers is an untenable business proposition. As a result, some retailers are requiring that employees who work at their headquarters, but not those who work in their stores, get vaccinated.

Vaccine hesitancy also varies widely by industry and geographic location. A recent study found that slightly less than 10 percent of educators and those working in life, physical, or social sciences were hesitant about getting vaccinated, while 46.4 percent of individuals working in construction and oil and gas extraction were identified as vaccine-hesitant. Additionally, between January and May 2021, vaccine hesitancy substantially decreased among those with a high school education or less, while the most educated group of individuals polled (i.e., those with Ph.D. degrees) now have the highest rates of vaccine hesitancy, according to additional research from the two universities.

Employers may want to consider such disparities when crafting their workplace vaccination policies. Trends among certain demographics and industries can also be an indicator of how many requests for accommodation a company can expect to receive; in general, companies that implement mandatory policies may want to be prepared to intake and process numerous accommodation requests.