By Matthew W. Murphy, VBM Attorney

Article written December 16, 2021

As a firm representing one of the parties to the national COVID-19 mandate litigation, our firm Vessell Bridges Murphy has been closely monitoring the ever-changing landscape of COVID-19 mandates and judicial challenges. The following is a quick guide offered to help consider the issues associated with vaccines in the workplace.

The first consideration is to understand the difference between an employer mandating that its employees get vaccinated versus the federal government mandating that an employer mandate that its employees get vaccinated. These two concepts are often conflated and serve as a source of confusion when the topic is a more nebulous “vaccine mandates.”  The former is the actions of a private entity (the employer) while the latter is the government requiring action under color of law. For clarity, the first will be referred to as an “employer mandate” and the latter as a “government mandate.”

Employer Mandate
It is generally held that employers have the right to require at-will employees to be vaccinated as a condition of employment. This may not apply to contract employees. The difference being that employment at-will suggests that the employer can change the terms of the employment (including vaccination status) on a whim (so long it is does not have an impermissible discriminatory effect such as religion, sex, age, etc.) while the contract employee has a contractual agreement with terms that may not be unilaterally modified by one of the parties, i.e., the employer or the employee.  Courts have ratified the employer’s right to impose vaccine mandates on its at-will employees.  The same cannot be said of contract employees as that analysis is fact based and would be determined based on the specific terms of the contract between the employer and employee.

Government Mandate
Generally speaking, the federal government has sought to impose a mandate on employers in three forms:  T Through executive order mandating that federal contractors impose mandates on their employee; through CMS mandating that healthcare providers impose vaccine mandates on their employees; and through OSHA mandating that employers with 100 or more employees mandating that their employees get vaccinated.

In short, there have been successful challenges to each of these federal mandates in the courts. The federal courts have struck down or issued a stay (similar to injunction) on enforcement of any of these governmental mandates pending a final determination of the authority of the federal government to impose these mandates.  As such, we are not currently aware of any enforceable federal mandate on employers that requires that employer to impose a mandate on its employees. Of course, this does not affect the employer’s right to decide for itself whether it chooses to will impose a mandate on its employees.

Finally, while Missouri has not issued any state mandate on employers, a recent Supreme Court decision has upheld New York’s right to impose a state-wide mandate on New York healthcare professionals without an exception for religious objection. This would suggest that the law may settle on a state’s right to impose a mandate but not the federal government’s right (the 10th Amendment to the Constitution reserves to the states any non-prohibited powers that are not granted to the federal government).

At the end of the day, this is an extremely complicated and (even worse) ever changing landscape. The common thread is that an employer can, if it feels appropriate after considering health and business interests, impose a mandate on its employees. That mandate should consider health and religious based exceptions.  Such employers should collaborate with their counsel to craft a mandate that does not run afoul of other laws that prohibit discrimination on an illegal basis. Currently, there is no obligation to impose a mandate on its employees based on the challenged executive actions which are currently pending in federal courts.  Employers should continue to monitor the outcomes of current stays and the litigation through industry bulletins and consultation with their counsel.

If you have any questions about covid vaccine mandates, please do not hesitate to reach out to us.

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