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August 18, 2021

New Jersey Law Journal: COVID-19 Vaccine Mandates and the Dawn of Delta: Counseling Employers in an Age of Uncertainty

Just about one year after the COVID-19 pandemic began, the availability of the COVID-19 vaccine seemed like a beacon of hope for many. Indeed, accessibility of the vaccine to millions across New Jersey and the world led to a decrease in the spread of the virus. It seemed to be the light at the end of the proverbial “tunnel,” especially for employers which want or need to have employees return to the workplace. The introduction of the vaccine, and its proven efficacy in fighting COVID-19, has posed many questions surrounding the issue of whether employers can mandate that employees become vaccinated to return to the workplace. With the Delta variant now spreading rapidly, many employers are wary of having unvaccinated employees return to the workplace and, therefore, are evaluating whether to mandate that employees become vaccinated.

The legal issues raised by mandating vaccines in the workplace require careful and individualized analysis for each employer as this is an ever-evolving legal issue. On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance on this very question, which was recently updated on May 28, 2021. The EEOC has expressly stated that an employer may require all employees who physically enter the workplace to be vaccinated for COVID-19. See “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Nonetheless, employers which elect to mandate vaccines are obligated to comply with Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., the Americans with Disabilities Act, 42 U.S.C.A. § 12101 et seq., and other applicable state and local laws, including, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (the “LAD”).
 
In certain circumstances, Title VII, the ADA, and the LAD require employers to provide reasonable accommodations to employees who cannot get vaccinated for COVID-19 due to a medical condition or a sincerely held religious belief. See 42 U.S.C.A. § 2000e et seq.; 29 C.F.R. § 1605.2(e)(1); 42 U.S.C.A. § 12112(b)(5)(A); N.J.S.A. 10:5-12. In those instances, an employer must evaluate whether it can provide a reasonable accommodation to the employee that would not pose an undue hardship on the operation of the employer’s business. Where an employee cannot become vaccinated due to medical or religious reasons, the employer must engage in the interactive process with each individual employee. See 42 U.S.C.A. § 2000e et seq.; 29 C.F.R. § 1605.2(e)(1); 42 U.S.C.A. § 12112(b)(5)(A).
 
During the interactive process, the employer must discuss with the employee potential accommodations and assess whether the accommodation is reasonable or presents an undue hardship. Historically, employers were not required to allow telecommuting as a reasonable accommodation. See Yochim v. Carson, 935 F.3d 586, 592 (7th Cir. 2014) (citing Bilinsky v. Am. Airlines, Inc., 928 F.3d 565, 573 (7th Cir. 2019)). However, given the pandemic, the current technology, and the success many employees and employers have had with remote working arrangements, denying remote working arrangements for certain individuals, who cannot become vaccinated, may no longer be deemed reasonable, particularly if the employee was productive working from home throughout the pandemic. Obviously, this would depend upon the particular job position held by the employee.
 
Not only is the determination of what constitutes a reasonable accommodation a fact-sensitive analysis, the definition of what constitutes “undue hardship” varies depending on whether an employee asserts the reason for declining to become vaccinated is due to a medical reason or a sincerely held religious belief. Under the ADA, “undue hardship” in the context of a disability means an action requiring “a significant difficulty or expense.” 42 U.S.C.A. § 12111(10)(A)–(B). Under Title VII, “undue hardship” in cases of sincerely held religious beliefs is defined as merely that which has “more than minimal cost or burden on the employer.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977); see also 29 C.F.R. § 1605.2(e)(1). Nevertheless, in the current pandemic, since the Centers for Disease Control (“CDC”) has made it clear that COVID-19 constitutes a direct threat to the safety, health, and welfare of the general population, employers could argue that an employee’s failure to get vaccinated poses a direct threat to other employees in the workplace and a possible business interruption if the employer is forced to shut down due to a workplace outbreak.
 
Under the current EEO guidance, the path initially seemed clear. However, such guidance appears to be at odds with Food and Drug Administration (“FDA”) regulations regarding mandating vaccines, such as the COVID-19 vaccine, that only have emergency use authorization (“EUA”) and have not been fully approved by the FDA. Specifically, 21 U.S.C.A. Section 360bbb-3(e) clearly states that individuals must be provided with notice, among other things, that they have “the option to accept or refuse administration of the product…” Employees who chose not to receive the COVID-19 vaccine, were not provided an accommodation, and were terminated, have already relied on this law in objecting to mandatory vaccination policies. In Bridges v. Houston Methodist Hospital, Civ. Action No. H-21-1774, 2021 WL 2399994 at *1 (S. D. Texas, June 12, 2021), Bridges and other 116 employees sued Houston Methodist Hospital after it announced a policy requiring employees be vaccinated against COVID-19 by a date certain. The plaintiffs argued that the hospital’s vaccine mandate was unlawful because the vaccines only had received EUA approval from the FDA. Id. In granting the hospital’s motion to dismiss, the United States District Court for the Southern District of Texas stated “Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. Bridges can freely choose 4810-4123-7493.v3 to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.” Id. at *2.
 
Likewise, in Legaretta v. Macias, Case No. 21-cv-179 MV/GBW, 2021 WL 833390 at *1 (D.N.M., March 4, 2021), the named plaintiff, Isaac Legaretta, a first responder who worked at the Dona Ana County Detention Center, claimed that Dona Ana County’s Mandatory COVID-19 Vaccine Directive (the “Directive”) requiring first responders to receive a COVID-19 vaccination as a condition of ongoing employment was a direct violation of the FDA’s EUA regulations. The Court declined to address the issue, in part, because Legaretta had not been terminated as a result of his refusal to become vaccinated; instead, Legaretta only received a “Coaching/Counseling Acknowledgement” in response to the refusal, which specifically stated that it was not “…considered a form of discipline and is solely used as a tool for performance management.” Id. After the Court denied the plaintiff’s application for injunctive relief, defendants filed a motion to dismiss the complaint, arguing, among other things, that the Directive did not violate plaintiff’s constitutional rights and that current EEO guidance permits mandating the vaccine. That motion is still pending and should be monitored by employment counsel advising employers with regard to vaccination policies.
 
To date, it does not appear that New Jersey courts have considered mandatory COVID-19 vaccination policies. However, Governor Murphy recently issued Executive Order No. 252, which, as of September 7, 2021, directs covered health care and high-risk congregate settings to maintain policies that require workers to either provide proof that they have been fully vaccinated or submit to COVID-19 testing at a minimum one to two times weekly. In addition, on Friday, August 6, the State of New Jersey Judiciary announced that court staff and state judges across the State will similarly be required to get the vaccine or submit to routine testing.
 
Right now, employers are operating in an age of uncertainty, while trying to mitigate risk of workplace COVID-19 outbreaks and continuing to protect their workforces. Although some employers, including United Airlines, Facebook, and Google, are mandating the COVID-19 vaccine, others are simply encouraging employees to become vaccinated or, for those who are not vaccinated, mandating facial coverings in common areas, social distancing, and good hygiene. Other business are continuing to permit employees to work remotely where possible.
 
In counseling employer clients with respect to mandatory vaccination policies, it is critical to ensure compliance with the current EEO guidance, the CDC Guidance, the FDA regulations, the pertinent Executive Orders, Title VII, the ADA, and the LAD, as well as any other local laws. Employment counsel must make certain that any mandatory vaccination policy in place for their clients provides carve outs for medical reasons and sincerely held religious beliefs, detailed procedures for employees to request a reasonable accommodation, and assure employees that the employer will provide reasonable accommodations in the absence of undue hardship.
 
Ultimately, until the law becomes clearer with regard to vaccine mandates, all policies and procedures must be frequently reviewed to ensure that employers are in compliance with the ever-changing laws and guidance.

Reprinted with permission from the August 18, 2021 issue of the New Jersey Law Journal. © 2021. ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.