In the wake of the U.S. Food & Drug Administration’s full approval last week of Pfizer’s vaccine for COVID-19, more companies are expected to mandate that their employees be vaccinated.
“You’re going to start seeing more employers impose a mandate on their employees,” said employment attorney Nathan Read of Mitchell Williams Selig Gates & Woodyard, which has offices in Little Rock, Jonesboro and Rogers.
Read has had calls from clients seeking guidance on COVID-related issues, including compliance and efforts to boost workforce vaccination rates.
Before the FDA’s full approval, private employers were able to impose a vaccine mandate on their employees as long as it was consistent with federal antidiscrimination laws, he said.
Employers could face compliance risks if an employee has a medical condition that rises to the level of disability and can’t receive the vaccine because of it, or if someone has “a sincerely held religious belief that prevents them from receiving the vaccine.”
The employer would then have to work with the employee to come up with accommodations, which might mean working from home. “Employers need to be wary and very cautious before taking action against an employee who claims they have a sincerely held religious belief,” Read said.
Before the FDA announcement, larger companies had announced requirements for employees to be vaccinated.
Walmart Inc. of Bentonville is requiring all market, regional and divisional workers who work in multiple buildings and all campus office employees to be vaccinated by Oct. 4, unless they have an approved exception.
Tyson Foods Inc. of Springdale will require its employees at U.S. office locations to be fully vaccinated by Oct. 1. All other employees are required to be vaccinated by Nov. 1, subject to ongoing talks with those represented by unions.
“Employers definitely can order vaccinations,” said Scott Burris, a law professor and the director of the Center for Public Health Law Research of Philadelphia. “In fact, it’s probably crucial in this culture because there’s such opposition to government ordering.”
During the 2021 legislative session, state lawmakers approved legislation that prevents the state of Arkansas or other government entities from requiring employees to be COVID vaccinated.
If a private-sector employee refuses to be vaccinated and is fired, the refusal could constitute misconduct, which would leave the worker ineligible for unemployment benefits, Read said.
“However, whether … the employee would be considered ineligible would depend on how the mandate is adopted by the employer,” he said. “It would depend on how it was communicated to employees — if it was adopted in writing, if it was uniformly enforced.”
The employer still would have to comply with federal antidiscrimination laws, he said. Read said he wasn’t aware of any lawsuits brought by Arkansas employees against their employers for mandating vaccines.
But in Texas, about 100 employees of Houston Methodist Hospital sued the hospital in June over its policy requiring workers to get vaccinated. U.S. District Judge Lynn Hughes threw the case out less within two weeks of its filing.
“Methodist is trying to do their business of saving lives without giving them the COVID-19 virus,” he wrote. “It is a choice made to keep staff, patients, and their families safer.” The lead plaintiff, Jennifer Bridges, “can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”
Some confusion arose in December when COVID vaccines gained emergency use authorization, but not full FDA approval. “A lot of people argued that that language essentially prevented employer-based mandates,” said Jennifer Piatt, deputy director of the western region office of the Network for Public Health Law of Edina, Minnesota.
Nevertheless, employers still could require their employees to be vaccinated. “There wasn’t anything that prevented employers from requiring vaccinations,” she said. “Health care employers over the years have required employees to get the flu vaccination yearly in order to come to work.”
Read said there’s no timetable for how much time a company can give its employees to be vaccinated before they’re fired. Employers should be flexible and take into consideration the area where the employees live, their access to the vaccine and what barriers exist, if any, to getting the shot, he said.
Read suggested working with the employees to establish a deadline for them to be vaccinated. “Because ultimately that’s what you’re trying to do for the employees.”
Sign up for Daily E-news
