Page 7 - November December CBA Report

Workplace
Vaccine
Mandates:
What Employers Can and Must Do
The COVID-19 pandemic has created a familiar and frus- trating pattern for employers: (1) government officials announce changes to COVID-19 workplace rules; (2) employers change their workplace policies and procedures to comply with these rules; and (3) the government announces more changes to these rules.
This pattern has generated an ever-shifting patchwork of federal, state, and local regulations. It has also caused nearly constant confusion among employers, particularly those with offices in multiple states. With each change, we employment attor- neys receive a wave of questions.
What must I do? What can I do? What should I do?
The latest announcement by the Biden Administration regarding vaccine mandates has been no different. In the coming weeks, OSHA will announce the details of the vaccine mandate, which applies to private employers with 100 or more employees, most federal employees and contractors, and most healthcare workers. While the propriety and effectiveness of this and similar mandates across the U.S. have been debated, the legal ground for such a mandate is solid.
The most notable legal precedent for vaccine mandates is the 1905 U.S. Supreme Court decision Jacobson v. Massachusetts. There, the Court upheld the Commonwealth of Massachusetts’ $5 fine for those refusing a smallpox vaccine. Essentially, the Court concluded in a 7-2 ruling that one person’s liberty not to be vacci- nated should not deprive his neighbors’ liberty to not be exposed to a deadly disease. In other words, under the U.S. Constitution, the interests of society can outweigh the interests of individuals in certain circumstances.
Even beyond the Jacobson decision, workplace vaccine mandates—both at the state and federal level—have largely been
By Zack Weber
found enforceable, particularly in situations where an unvacci- nated individual could pose a significant threat to the health of others. And while such mandates were more limited in scope than the broad mandate announced by President Biden, the COVID-19 vaccine mandate is expected to withstand the inevitable legal challenges, particularly because this mandate is expected to have a built-in “get vaccinated or get tested” exception.
For now, employers who are affected by the federal vaccine mandate should prepare to implement it or face potential fines from OSHA.
For employers unaffected by any federal or state mandates, OSHA still recommends requiring employees to be vaccinated, with some potential exceptions. As with other workplace poli- cies, reasonable accommodations must be made for individuals with a qualifying disability or a sincerely held religious belief that prevents them from being vaccinated. One reasonable accommo- dation could be requiring unvaccinated employees to provide a negative COVID-19 diagnosis each week, but other accommoda- tions are possible.
Whether or not employers are in favor of government vaccine mandates, this particular mandate at least eliminates some of the guesswork that has haunted employers for the past 18 months. What employers must and should do regarding employee vacci- nation policies is becoming much clearer – and will only continue to do so.
Weber, an associate with Dinsmore, works with clients to prevent and resolve a
full array of employment-related legal issues. His practice focuses on litigation of discrimination and wage and hour claims and legal counsel related to employment policies and contracts.
www.CincyBar.org
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