Delta Déjà Vu: What’s Changed (or Not) About COVID Vaccinations in the Workplace?

As the summer of 2021 began, masks were coming off and vaccinations were risings. Many individuals began traveling again for the first time in over a year. Most thought that we had reached the light at the end of the tunnel. Fast forward to the end of summer and COVID-19 hospitalizations are surging, particularly among America’s deep south states. According to recent data from the U.S. Department of Health and Human Services, hospitalizations are up to 2,500 patients per day. The surge has even led some of country’s most notable cities, including San Francisco and New Orleans, to require proof of vaccination for entry into certain indoor settings. Many employers are now revisiting plans to implement COVID-19 vaccination policies. Employers may encourage and mandate that employees receive the COVID-19 vaccination, subject to the exceptions provided for employees with disabilities under the Americans with Disabilities Act (ADA) and sincerely held religious beliefs under Title VII of the Civil Rights Act of 1964 (Title VII). However, before implementing a mandatory vaccination policy, it is critical that employers develop a strategy to address several key areas of consideration. The strategy should include risk assessment, the development of clearly defined policies, protocols for collecting documentation, processes for reviewing exemption requests and processes for employees who lie about their vaccination status.

Recent Vaccination Decisions

The U.S. Equal Employment Opportunity Commission (EEOC) has been consistent with its position that employers may mandate vaccinations. A Texas federal court recently affirmed this position on June 12, in Bridges v. Houston Methodist Hospital, Docket No. 4:21-cv-01774 (S.D. Tex. Jun 01, 2021). In Bridges, the court dismissed the case, which challenged the hospital’s mandatory COVID-19 vaccination policy for employees. The court held that the vaccination policy was “consistent with public policy” and not unlawful. This case is notable because it is the first court opinion addressing the ability of employers to require employees to be vaccinated against COVID-19. The decision is also notable in that it rejects the argument, which has been advanced in other cases challenging mandatory vaccination policies in the employment context, that such policies are prohibited by the federal Food, Drug, and Cosmetic Act (FDCA).