The Question That Has Businesses Scratching Their Heads: To Mandate COVID-19 Vaccines or to Not Mandate COVID-19 Vaccines

Jaclyn Sanchez – On October 13, 2021, a federal district court in Texas halted United Airlines’ vaccination mandate, temporarily keeping unvaccinated employees who challenged the airline’s policy on payroll while litigation proceeds.

Under the Texas-based company’s COVID-19 vaccine mandate that was first announced in August 2021, unvaccinated employees would be placed on unpaid leave if they requested a medical or religious exemption from the mandate. The length of the leave depends on the employee’s role, but according to the airline, employees who work on flights and interact with customers will have to remain on leave until the pandemic “meaningfully recedes.” While over 90% of United’s employees are compliant with the company’s vaccine mandate, a small number of employees decided to fight the mandate by filing a federal lawsuit over the company’s policy, arguing that it constitutes an adverse employment action.

An employment action is an adverse employment action if it materially affects the compensation, terms, conditions, or privileges of employment; and such actions are only legally actionable if they violate an employee’s legal rights. For example, under federal laws like Title VII of the Civil Rights Act, an employee can sue an employer for discrimination based on race, color, religion, sex, national origin, age, disability and genetic information (including family medical history) or retaliation. Common examples of adverse employment actions include firing, demotion, suspension, placement on administrative leave, deduction in benefits, amongst others.

The employees suing United allege that the exemption policy forces them to choose between their beliefs or health and their livelihoods. While the Equal Employment Opportunity Commission has yet to examine their claims, the employees sought a restraining order to temporarily prevent the mandate from going into effect for those employees seeking a religious or medical exemption. U.S. District Judge Mark Pittman in Fort Worth, Texas, granted the restraining order in favor of the employees, reasoning that the employees should be able to stay on the payroll until the court rules on the merits of the case.

The judge’s ruling comes on the heels of President Biden’s new vaccine mandate requiring all employers with more than 100 workers to impose a vaccine mandate or test for the virus weekly. Biden also recently signed an executive order requiring all government employees and contractors, including airlines, to get the COVID vaccine, with no option of being regularly tested to opt out. Texas Governor Greg Abbott, however, recently signed an executive order banning private employers and other entities from enforcing COVID-19 vaccine mandates if employees object for a broader range of reasons than federal directives allow. Other states, like Florida, have also threatened to ban vaccine mandates.

The conflicting state and federal rules are already raising legal challenges from all sides of the issue, including those in favor of and those against the vaccine mandate. For example, two other Texas-based aviation giants, Southwest Airlines and American Airlines, have stated that they plan on moving forward with meeting an upcoming federal deadline for federal contractors to have their employees vaccinated, despite Texas’ vaccine mandate ban. Conversely, Delta, a Georgia-based airline, has decided to make the vaccine optional, but with the following caveat: As of November 1, 2021, Delta employees who have not received the vaccine will have to pay $200 per month to remain on the company’s health plan.

Much uncertainty remains, and the problem will only continue to grow, not just for airlines but for all businesses, and especially for hospitals. According to a recent survey by the American Nurses Association (ANA), almost 1 in 8 nurses had not gotten the vaccine or did not plan to, exacerbating the current nursing shortage. Recently, a group of unvaccinated Maine health care workers asked the U.S. Supreme Court to issue an emergency injunction to block a state rule requiring certain health care facilities to mandate the vaccine and offer no religious exemption. The Maine health care workers argued that offering no religious exemption violates their religious liberty rights. In a 6-3 decision, the Court refused to issue an injunction that would halt the state’s COVID-19 vaccine mandate. The Court issued a single-sentence order declining to intervene but did not explain the majority’s reasoning. Justice Amy Coney Barrett, however, authored a concurrence, joined by Justice Kavanaugh, noting that it would be inappropriate to take the case on an emergency basis because doing so would “force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without the benefit of a full briefing and oral argument.” On the other hand, Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito dissented and said they would have granted the injunction. Authoring the dissent, Justice Gorsuch declared that the state’s decision to deny a religious exemption under these circumstances “borders on the irrational.”

While the COVID vaccine mandate for Maine health care workers went into effect October 26, 2021, the workers plan to file a petition for the Court to review the case’s merits. As such, it is only a matter of time until federal courts are forced to face public scrutiny and opine on the merits of an issue that is not going away anytime soon.

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