HR REPORT: To Mandate or Not to Mandate – The Vaccine Question on Everyone’s Mind

As of the date this article was written, over 89 million Americans are fully vaccinated, or have received their first vaccine shot, against COVID-19. President Biden has committed that will be sufficient supplies of vaccines for all adults by May 1st. While the prospect of “herd immunity” and thus a hoped-for return to “normality” remains a relatively distant prospect, the increasingly ready availability of the vaccine has caused employers to ask themselves – What would higher vaccination rates among my employees mean for my workplace? Can I require my employees to be vaccinated? If so, should I? As always, these are complicated questions that require employers to carefully consider their goals and balance the risks of different approaches.

First, is it lawful for employers, including public employers, to require that employees provide proof of vaccination or face termination of employment as a consequence? While this question has not been tested by the United Supreme Court in over 100 years, the answer is likely yes, depending on the specifics of the employer’s rule. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court upheld a vaccination law requiring residents of Massachusetts to be vaccinated against smallpox. The Supreme Court has never revisited or overturned its Jacobson decision. While it is not possible to predict whether the current Court would continue to support Jacobson, under current law mandatory vaccination rules will not be considered to unconstitutionally infringe on a person’s liberty interest so long the rule is “rationally related” to the government’s interest in keeping people safe.

Looking beyond the Constitution to other potential legal challenges, it is important to note that the currently available vaccines have only been authorized for “emergency use” by the Federal Drug Administration. As a condition of that authorization, the Secretary of Health and Human Services requires that individuals be informed that they can refuse the vaccine and of the consequences for refusing, if any. Some have viewed the Emergency Use Authorization (EUA) as preventing employers from mandating vaccination. While this issue has yet to be tested in the courts, there is a good argument that the EUA only outlaws forced vaccination programs, not programs that require individuals to make a hard choice. In fact, the EUA itself contemplates that there could be consequences for an individual that refuses the vaccine. Therefore, while there are arguments on both sides, the EUA does not clearly prohibit employers from mandating the vaccine.

Considering the above, could a risk-tolerant employer adopt a lawful absolute vaccine mandate for its workplace? No. Title VII of the Civil Rights Act of 1964 protects employees against, among other things, discrimination on the basis of religion, and the Americans with Disabilities Act protects employees against discrimination on the basis of a physical or mental disability. Additionally, both religion and disability are protected statuses under New Hampshire’s corollary Law Against Discrimination, RSA 354-A. An employer who adopts a mandatory policy would, therefore, be required to make efforts to accommodate those employees with religious objections or disabilities that prevent them from becoming vaccinated. An employer inclined to adopt a workplace vaccine policy should make sure that it contain an express recognition of this obligation.

This brings us to the second important question – even if lawful, should employers adopt a workplace vaccine requirement? One argument in favor is that vaccinated employees who engage in international or cruise ship travel and/or who come into close contact with a person with COVID-19 do not need to quarantine. Therefore, the more vaccinated employees in the workplace, the lower the risk of service interruptions due to unanticipated employee absences. However, most employers are looking for a larger “return to normalcy” – specifically, the relaxation of the COVID protocols that have been so disruptive to easy employee engagement that we all took for granted in 2019. Unfortunately, a workplace vaccination rule will not accomplish that goal. Currently, the CDC continues to recommend that employers maintain their COVID-19 safety precautions, including masking and social distancing, to the extent both vaccinated and unvaccinated individuals are in the workplace. Additionally, Governor Sununu’s Universal Guidelines for New Hampshire Employers and Employees, which requires masking and social distancing, remain in effect. Therefore, regardless of the vaccine status of employees, workplaces must continue to implement their COVID-19 precautions, at least for now. Additionally, for unionized workplaces, it is likely that unions would take the position that a workplace vaccination rule is a mandatory subject of bargaining that could not be implemented without the union’s agreement. While there are arguments to be made on the other side of this position, as a result of the potential risk and the relatively minimal upside, most public employers in the state are currently encouraging, but not mandating, vaccines.