Federal Court Upholds Employer’s COVID-19 Vaccine Mandate
On June 12, 2021, a federal District Court in Texas in Bridges, et al v. Houston Methodist Hospital et al, Docket No. 4:21-cv-01774 (S.D. Tex. Jun 01, 2021) dismissed a case challenging a hospital’s mandatory COVID-19 vaccination policy for employees. This 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”).
Companies can require workers entering the workplace to be vaccinated against the coronavirus, according to recent U.S. government guidance.
As many Americans prepare to head back to the office, companies are hammering out policies on the extent to which they will require, or strongly encourage, employees to be vaccinated against the coronavirus.
The bottom line is that companies are legally permitted to make employees get vaccinated, according to recent guidance from the federal agency that enforces workplace discrimination laws, the U.S. Equal Employment Opportunity Commission.
Here’s the latest about the rules in the United States on vaccinations in the workplace.
Employers can require employees to get vaccinated and offer incentives to do so.
Federal laws do not prevent companies from requiring employees to provide documentation or other confirmation of vaccination, though they must keep that information confidential. Employers can also distribute information to employees and their family members on the benefits of vaccination, as well as offer incentives to encourage employees to get vaccinated, as long as the incentives are not coercive.
If an employee will not get vaccinated because of a disability or a sincerely held religious belief, the agency said, he or she may be entitled to an accommodation that does not pose an “undue hardship” on the business. The agency said examples of reasonable accommodation could include asking the unvaccinated worker to wear a face mask, work at a social distance from others, get periodic coronavirus tests or be given the opportunity to work remotely.
Still, the Equal Employment Opportunity Commission guidelines recommend employers to keep in mind that some individuals or demographic groups may face more barriers to receiving a vaccine than others.
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In addition to private companies, government entities such as school boards and the Army can require vaccinations for entry, service and travel, a practice that follows a 1905 Supreme Court ruling in Jacobson v. Massachusetts that allowed states to require people to be vaccinated against smallpox. That decision paved the way for public schools to require proof of vaccinations from students.
Isn’t this a HIPAA violation?
The Health Insurance Portability and Accountability Act has protections for patients’ confidential health information, but it covers what your health care provider can share with others, rather than employers and what they can ask for.
A Rockefeller Foundation and Arizona State University survey of more than 1,300 medium and large companies in the United States and Britain found that more than half said they would require employees to show proof of vaccination. Nearly nine out of 10 said they planned to encourage or require employees to get vaccinated, the survey found.
But while it is legal to mandate vaccinations, many companies are avoiding the thorny issue. Some companies don’t want to create mandates until the coronavirus vaccines have received full approval from the Food and Drug Administration, which has so far granted only emergency-use authorization to the three vaccines in use in the United States. Others, including hospitals, have refrained from issuing guidance to avoid lawsuits.
Houston Methodist, a hospital in Texas, faced a lawsuit from more than 100 people after it told employees they all had to be vaccinated by Monday. Dozens of staff members gathered outside the hospital system’s Baytown location this month, holding signs that read “Vaxx is Venom” and “Don’t Lose Sight of Our Rights” in protest of the policy. Nearly 200 employees were suspended, and the hospital said if they did not get vaccinated by June 21, it would start the process to end their employment.
Hospitals and medical centers. Many hospitals and major health systems are requiring employees to get the Covid-19 vaccine, citing rising caseloads fueled by the Delta variant and stubbornly low vaccination rates in their communities, even within their work force. In N.Y.C., workers in city-run hospitals and health clinics will be required to get vaccinated or else get tested on a weekly basis.
Can your employer require a vaccine? Companies can require workers entering the workplace to be vaccinated against the coronavirus, according to recent U.S. government guidance.
There is some murkiness, since the rules vary state by state.
In theory, federal law should trump state law, but the situation is tricky: The recent guidance mostly functions as a reminder that federal equal employment opportunity laws do not prohibit employers from requiring vaccines. But states have been staking out their own paths.
In South Carolina, for example, state agencies can encourage employees to get vaccinated, but they cannot require them to be. They also cannot require South Carolinians to provide proof of their vaccination status as a condition for receiving government services or gaining access to any government buildings, following an executive order by Gov. Henry McMaster, a Republican.
Gov. Greg Abbott of Texas, also a Republican, signed a law prohibiting businesses or government entities in the state from requiring digital proof of vaccination, joining states such as Arkansas and Florida. It is not clear whether the new law will affect Houston Methodist’s mandate that employees be vaccinated.
Which major companies have said they are requiring employees to be vaccinated?
Many companies are encouraging employees to get the jab rather than requiring them to do so. Target, for example, is providing up to four hours of paid leave for employees to get vaccinated, and covering taxi rides to and from the appointments. The supermarket chain Kroger is offering $100 to all associates who provide proof of vaccination. Salesforce, the software giant, will allow up to 100 fully vaccinated employees to volunteer to work together on designated floors of certain U.S. offices.
Delta Air Lines said last month that it would require new hires to be vaccinated but exempt current ones, becoming one of the first major companies to do so. United Airlines also said that it would require new hires to provide proof of vaccination within a week of starting, but would make exceptions for people who had medical or religious reasons for not getting vaccinated. It is giving three days of extra vacation to flight attendants who have received at least their first vaccine dose by June 9.
What protections and rights do employees have as they head back to the office? By Margot Roosevelt for the LA Times
Can your boss make you return to the office mid-pandemic?
Can you refuse to be vaccinated and keep your job?
Can you sue if the colleague in the next cubicle won’t wear a mask?
As the COVID-19 pandemic abates in California , many employees who have worked from home for months will soon return to the office with no clear-cut answers on how to navigate coronavirus-related issues. Some are happy to go back. Others — not so much.
Companies are obligated by law to provide safe workplaces — a challenge as the virus continues to circulate, albeit at a lessening pace. With many white-collar workers still fearing exposure, labor lawyers predict a surge in complaints to workplace safety agencies and related lawsuits. “We’ve not had anything like this pandemic in a hundred years,” said UC Berkeley law professor Catherine Fisk. “And employment laws were developed fairly recently when infectious diseases were not a major threat, other than the annual flu.”
Lawsuits over whether businesses are adequately protecting office workers from COVID-19 are beginning to hit the courts, following dozens that were filed over the last year by blue-collar warehouse and meatpacking employees who could not work from home. Those suits are still working their way through the courts. And it is too soon to predict how case law will evolve to address the virus’ particular risks, Fisk said, given the complexity of labor laws.
Managing the transition back to the office is likely to involve delicate negotiations. Getting people back to work side by side with colleagues is “going to be tough, just like it was tough getting us home,” attorney Jennifer Shaw said in a recent California Chamber of Commerce podcast . “I’ve been saying to employers, try to have empathy.”
In April, the U.S. Equal Employment Opportunity Commission gave employers the green light to require job-related vaccines . Many employers remain hesitant, however, until the U.S. Food and Drug Administration gives final approval to vaccines that are now being used under an emergency authorization.
Final approval is expected soon, but Fisk said employers may even now order most of their workers to be vaccinated, and fire them if they refuse. California’s Occupational Safety and Health Standards Board will consider a proposal Thursday to relax masking and physical distancing requirements in workplaces where all workers are vaccinated.
Some employers, including campuses across the University of California, have already adopted an employee vaccination mandate. Only workers who can prove that a disability should preclude vaccination, or those with “sincerely held religious beliefs” against vaccines, could be justified in claiming an exemption, legal experts say. But lawsuits probably will challenge government guidance as well as mandates by individual managers.
Fisk predicts most employers will conclude that a safe workplace requires a vaccinated staff to the fullest extent possible. Courts will consider not just a worker’s objection to vaccination but also “all the other employees’ interests in not being exposed to a highly transmissible disease,” she said.
A disability exemption would depend on scientific evidence of a vaccine’s harm, and a religious exception would be unlikely to succeed in court, based on earlier cases of workers who objected to working on Sabbath Saturdays, Fisk said.
Employers may face questions on what constitutes a bona fide religious objection. “Is it just somebody who says, ‘God spoke to me last night and told me not to get vaccinated’?” she asks. Shaw, the California Chamber podcaster, said some of her clients want all their workers to be vaccinated, some “couldn’t care less,” and others are taking “an encouragement approach” and offering incentives.
That approach may not succeed with people opposed to vaccines. “If I have a political — or in my mind rational — view of why I wouldn’t get vaccinated, somebody giving me a Starbucks card is not going to change my mind,” she said.
A major issue in returning to offices is how employers treat workers with disabilities.
Under federal and state disability laws, companies are required to provide “reasonable” accommodation for disabled employees at their workplace. What’s reasonable in the case of the COVID-19 pandemic is open to dispute, but courts have ruled that employers must engage with workers to try to find a solution.
That doesn’t always happen. Cheri McKinzie, a 58-year-old marketing executive, says she was summarily fired after explaining to her bosses that she needed special accommodations at the office because she is at high risk of complications from COVID-19. McKinzie had lost most of her left lung during a bout with cancer seven years ago. Her employer, Golden State Farm Credit in Chico, had closed its office in March of last year so staffers could work from home. That went well for McKinzie, who says she was able to perform all her duties remotely. In June, when the company ordered employees back to the office, McKinzie asked for accommodations, such as a staggered work shift, an air purifier and a requirement for colleagues to wear masks at meetings. Instead of discussing her requests, she said in a lawsuit filed in Butte County Superior Court , the company laid her off. “They simply terminated her,” said McKinzie’s attorney, John-Paul S. Deol.
Rob Faris, Golden State Farm Credit’s president and chief executive, did not respond to requests for comment.
“My doctor said I could end up on a ventilator,” said McKinzie, the sole provider for her 11-year-old son, who has autism. “I begged for my job. It was humiliating.” She has had no luck in finding a new position and her son, she said, is having nightmares about their family becoming homeless.
On May 12, Judge Stephen Benson granted the company’s motion to refer the case to private arbitration, a closed-door proceeding that often favors employers. He ruled that McKinzie waived her right to a jury trial by signing an arbitration agreement when she was hired.
McKinzie said she was unaware that the document, part of a stack of papers that she briefly scanned, meant she could not sue “if the company violated discrimination laws.”
Forced arbitration, an increasingly common tactic in business conflicts, is likely to apply to most COVID-19-related employment lawsuits, lawyers say.
But many disputes won’t qualify for either a trial or arbitration.
Although lawsuits by disabled workers like McKinzie can be filed under disability discrimination laws, the safe workplace obligation under federal and state occupational safety statutes is generally enforced by California’s Division of Occupational Safety and Health, Cal/OSHA . Workers can file complaints with that agency. But by law only the agency, not the workers, can sue employers for violating Cal/OSHA regulations.
Several lawsuits have been filed under “public nuisance” statutes , but none have yet succeeded, since those laws normally apply to situations such as a polluting factory that threatens the health of a community, not a private workplace. “There are a lot of barriers to employees suing their employer for failing to provide a safe workplace,” said Fisk, the UC Berkeley law professor.
If workers contract COVID-19 on the job, employers are largely immune from litigation except in cases of gross negligence. In exchange for that immunity, complaints must be routed through the workers’ compensation system.
“Workers’ compensation is a no-fault system, where an employee who is injured or becomes ill at work has a right to have their medical bills paid, and some monetary compensation for lost wages or disability or even death,” Fisk said.
Last year, the California Legislature expanded workers’ compensation so that employees of businesses with more than five workers who contract the virus during an outbreak are presumed to have caught it at work unless companies offer proof to the contrary.
Some lawsuits have sought to carve out an exception to the workers’ comp system for family members seeking damages from businesses over relatives’ infections. But on May 10, a federal judge in San Francisco dismissed a case filed by a construction worker’s wife who was hospitalized after her husband brought home the virus.
The claim against Victory Woodworks, a Nevada company that allegedly transferred infected workers from another location to her husband’s job site, falls under the workers’ compensation system, the court ruled.
Pet-friendly workplaces puzzle out safe returns for all those pandemic puppies
BY KATIE DEIGHTON for the Wall Street Journal
One of Gemma Gillingham’s favorite parts of working for Nestlé Purina PetCare is her informal second job in the London office: chief of the pet patrol.
Nestlé U.K. is one of those pet-friendly employers that allow workers to bring their furry friends with them, and it is the job of Ms. Gillingham and other members of the Pets at Work initiative, or PAW, to walk the floors, dish out advice and generally prevent canine chaos.
Now, pandemic concerns about social distancing and virus transmission have required her to add some new bark to her routine: No petting other people’s dogs.
“We’re making sure it’s public knowledge to everybody in the building that only owners can do the stroking,” she said. “We try not to be the police, but we’ve also said no long extender leads so the dogs don’t run up and touch other people.”Planning for safe returns to the office has been a bureaucratic and ethical minefield for many companies. Those that allow pets into the workplace have an extra set of puzzles to work through: Will the lure of a cute puppy discourage social distancing? Could one pet give another Covid-19?
The Centers for Disease Control and Preventionlast weighed in on the issue in March. It advised
that while the risk of animals spreading Covid-19 to people is low, owners shouldn’t let their pets interact with people outside the household because the virus can spread from people to animals in some situations. And no, it said, don’t put a mask on your dog.
Another question, though, looms for some employers: If and when all the employees come back, what are we going to do with all these new dogs?
“I reckon our dog population will have doubled since the last time we were in,” said Chris Gallery, a partner at advertising agency Mother London Ltd. and witness to the puppy boom of 2020—the rush to adopt a canine companion during long and lonely lockdowns.
About three years ago, Mother’s office became “a bit of a dog playground” when the 180-person agency found its dog population had hit double digits, he said. “It was brilliant for the videos, but there was a lot of barking.”
A dog code of conduct was drawn up: No paws on sofas. No eating out of trash cans.
Mother, which has reopened its office at 50% capacity for humans, is now figuring out how it will handle a larger dog pack when England’s coronavirus restrictions are lifted on June 21 and more employees have the option to stop working from home. One solution being tested is a drop-in dog walker to take out Mother dogs once a day.
“I don’t want people to feel like they can’t come in because they think they’re not going to get their moments to walk their dog,” Mr. Gallery said. This month, Mother introduced a digital
booking platform that lets employees reserve desks and meeting-room space—and space for their dogs.
Huge LLC, a digital-marketing firm based in Brooklyn, N.Y., also is building a platform on which employees can book a time and space for themselves and their nonhuman visitors, specifying the dog’s size—small, medium or large—and any special canine needs.
“It’s to make sure we have the data to support any workplace analysis that we do,” said Raj Singhal, the company’s chief operating officer and acting chief executive. “And it’s also a way for us to make sure that if we were to have an issue with a specific dog—or cat on a leash—we know exactly what’s coming into the office.”
Mr. Singhal estimated around 50 dogs used to be regulars in the 500-person workplace. Now he expects more like 75. He knows that as office-dog populations grow, so will the frustrations of the anti-office-dog lobby: The allergy sufferers, the phobics and the animal-ambivalent.
The new booking system will help Huge figure out where it might place a dog-free zone in the office, he said.
WeWork, the commercial-real estate company that provides shared workspaces, calls itself dog-friendly. But early in the pandemic, the company told members not to bring in their pets at all.
It rescinded that policy last October after itsmedical advisers said animals are not consideredto play a role in the spread of Covid-19, thespokeswoman said. As tenants begin to return, many of its buildings have begun to implement dog-free areas or floors.
Despite the apparent low risk associated with pets, some office spaces aren’t taking any chances. Puppet, a software company based in Portland, Ore., that once held a “wedding” for two office dogs, has implemented a “no petting each other’s dogs” policy.
“There’s not much evidence about the Covid virus spreading from dogs,” said Laura Nichols, Puppet’s director of global workplace and commercial real estate. “But we are aware that there is so much unknown, and we do know if we have a dog in the office, and every person in the office is gathering around it petting it, that could be a risk.”
Purina has always taken measures to keep its dogs under control. It hires a dog behaviorist to check on their manners, requiring them to take a doggy exam, testing their ability to sit, stay relatively quiet and interact nicely with other dogs, before being allowed into the building.
Nevertheless, for now, it has put a stop to group dog-play in the office gardens. The aim, however, was to keep the humans apart, not the dogs.
“The dogs haven’t got any friends at the moment,” said Ms. Gillingham. “But we’re hoping it’s a short term thing, until we’re out the other side, and then it will be back to normal.”
From the LA Times: Stephanie DeAngelis For The Times By Ronald D. White
As pandemic eases, luring people back to office isn’t easy
Over 14 months of pandemic lockdown, Rebecca Jacobsson sometimes has attended two video gatherings at once — a magic trick pulled off through skillful use of the mute button and, sometimes, a hand casually draped across her mouth to mask that she was multi-Zooming.
Cross-country client meetings formerly conducted face to face now happen in different time zones in quick succession, said Jacobsson, director of digital marketing strategy for Irvine advertising agency Rhythm.
Because she is able to work remotely from her Lake Forest home, Jacobsson said she is happier and more productive, able to skip traffic jams, flights, jet lag and bad airport food, not to mention multiple wardrobe changes. Those are just a few of the reasons why the 41-year-old ad executive doesn’t want to return to her office five days a week. “There are some days when I have meetings back to back to back,” Jacobsson said, “and if I’m going to be making a lot of calls at a desk, I’d rather be at home so I don’t have to get up, do my makeup, get dressed, make myself presentable for actually seeing people in person. I’ve become an even more efficient multitasker because of it.”
Many employees across the U.S. apparently feel the same way. Having been thrown into remote working on an emergency basis in March 2020, they say they mastered that challenge and have earned some workplace flexibility.
Just over a third of workers surveyed recently by staffing firm Robert Half said they would quit if required to return to the office full time.
Nearly half of those polled — more than 1,000 U.S. workers ages 18 and older — said that if they had to return to their offices, they would prefer a hybrid arrangement, dividing their time between the office and another location, such as home. “Reopening doors will bring new obstacles for companies to navigate,” said Paul McDonald, senior executive director at Robert Half. “Not all employees will be ready — or willing — to return to the workplace, so staying flexible and responsive to their needs will be critical.”
Brandi Britton, Robert Half’s district president for Los Angeles and Santa Barbara counties, said workers “found in many cases they were more productive when they were home because they didn’t have any distractions. Some just aren’t willing to go back to long commutes, high parking costs and would prefer if they only had to go to the office a few days a week.”
Some of the biggest names in business are feeling the pushback.
Google, for instance, backtracked from an announcement that all employees would be required to be back in their offices three days a week.
Google’s latest stance is that all of its employees worldwide can continue working remotely until September, when they will be allowed to choose whether to return to their pre-pandemic office or a Google office in a different city, or to work permanently away from the office, if their job description allows it.
Microsoft said it will allow employees to work from home up to 50% of the time or work remotely full time if their manager approves.
Salesforce, the parent company of Slack, has declared the traditional 9-to-5 workday dead, at least for now, and will allow workers to go to their offices one to three days a week. Facebook and Twitter said they will allow employees to work from home indefinitely.
But some experts point out that these are sometimes reluctant moves by corporate managers who would really rather see a return to the pre-pandemic normal of five days a week at the office. They just don’t think they can go there directly in the near term and perhaps are treading lightly, said Johnny C. Taylor Jr., chief executive of the Society for Human Resource Management . The group for human resources professionals has 300,000 members in 95 countries.
Over the last two years, Taylor noted, issues in the larger world, such as gender and race, were already causing division in the workplace. “Now we’ve got the culture that works remotely and the culture that works in the office. So, we are beginning to see another divide,” Taylor said. “CEOs were having a hard time getting culture right before. Now there’s yet another culture issue that we’ve got to figure out.”
A recent poll of 577 San Diego employers found that 64% said staff won’t be allowed to work from home full time post-pandemic. Just 10% of businesses expected that most employees would work remotely three or more days a week, according to a report published last week by the San Diego Assn. of Governments.
WeWork Chief Executive Sandeep Mathrani caught some heat after he told a Wall Street Journal virtual conference last week that people who are most comfortable working from home are the “least engaged” with their jobs. “People are happier when they come to work,” Mathrani said.
The 35-employee ad agency where Jacobsson works illustrates the changing workplace dynamic.
Before March 2020, Rhythm’s ad execs typically preferred to hash out strategies for client pitches as a group in one location. As the pandemic stretched on, some of Rhythm’s staff moved far from the office but remained full-time employees.
Peter Bohenek, co-founder and president of Rhythm, said he’s had to change his thinking as a result. “We’re a digital marketing agency, and we used to advocate having employees come to our office in Irvine to work,” he said.
Now Bohenek faces a new normal in which half the staff wants to go back to the office full time and half wants to work from home and come into the office as needed. “Another aspect of what we think the new normal will be is going to be having more virtual, remote employees that are not necessarily even in California,” he said.
A similar workplace shift is happening at Clockwise, a San Francisco company whose automated calendar management system is used by major companies to schedule meetings and improve employee work-life balance. “We’ve been fully remote and successful for more than a year. There’s no putting that back in the box,” Clockwise Chief Executive Matt Martin said.
“We did offer employees the option to stay completely remote,” he said. “We’re going to open the office three days a week. Two days are going to be completely remote. We’re going to balance it that way.”
Taking a slow approach makes sense, said Dr. Jason Levine, a licensed clinical psychologist in Southern California.
Workers were suddenly forced out of their offices and, for many, into a completely foreign work environment. Then and now, he said, they are probably responding the way that people do when they first enter treatment.
“When I get a new patient, they are most often, at first, very uncomfortable, very much not wanting to be there,” Levine said. “But then, in just a month, much less a year or longer, those same patients have adjusted so well to the treatment that the idea of leaving it behind was what had become scary.
“We’re talking about over a year now in which people have become acclimated to working from their homes. So the idea of going back to an office has all of these unknowns — and change in and of itself is stressful — even if it represents a positive step in the fight against this virus.”
Los Angeles resident Ariel Padilla recalls joking two years ago with a friend at a Bay Area tech startup where remote working was the norm: “I remember him asking me, ‘Wait, so you really go into work every day?’ I was like, ‘Dude, I’m not the weird one here, you’re the weird one.’
“Now, I totally get why he was asking me. I love my job and it’s rad, but I can’t imagine having to go to the office every day.”
Padilla, who builds digital models for a construction company, discovered he can easily work at home because he has the proper equipment. The arrangement has been more relaxing and has helped him save time and money.
Padilla’s employer hasn’t yet solidified plans for a return to the office, and “there has been talk about a transition to a semi-remote condition where a few of us go on site a few times a week,” he said. “Personally I’m never going back to a fully in-person job, even if it means leaving my current job.”
Returning to the office isn’t the only concern. It’s also getting there, for some people who take a bus or train.
A worker who commuted by Metrolink to a Southern California entertainment giant said he is worried about plans to bring employees back this summer. “I am absolutely not comfortable taking mass transit for the foreseeable future,” said the worker, who didn’t want his name used for fear of corporate retaliation. “I’m also not comfortable being in an indoor environment with people who aren’t vaccinated,” he said. “Vaccine hesitancy is creating more uncertainty for me.”
Network engineer Jonathan Tan is even more unhappy. The multistate healthcare foundation where he works has ordered everyone back to the office. “They expect us back in person every day all day,” Tan said. “I do not like it at all, and I will be looking for a new job.”
There will also be an abrupt transition for Charles Greenwood, who works for a nonprofit that monitors university research and training grants. Greenwood’s employer requires staff back in the office full time when their coronavirus vaccines are in full effect.
“I’m rather disappointed by this decision,” Greenwood said, but he intends to comply.
Gary Holbrook, 67, works as a software developer for a Southern California medical products design and manufacturing company that had said it expected its employees to return to the office in July.
Since then, however, the company has pushed the office restart date until September, “possibly,” Holbrook thinks, “for the younger employees who have been slow in getting vaccinated.”
“I really don’t want to go back. I enjoy working from home,” Holbrook said. “I didn’t have one-hour-plus commutes twice a day.”
Holbrook said that his employer is working out a hybrid model that would combine office and remote work. No one would have a designated desk, he said. “You would just pick a desk and it’s yours for the day,” he said. “That’s much better than being there five days a week, but I’m still not happy about it.” Holbrook said he is considering other jobs.
Jacobsson said working from home brings benefits beyond increased productivity. For her, quality of life is more important. “I’m a single mother of two children,” she said. “My kids’ father is in another country, so I have them full time, and I’m on call sometimes from 7 in the morning until 6 o’clock at night. So it’s just not feasible for me to be away from home for 11 hours a day. “If I’m going to be sitting on a computer on calls all day, I’d rather be at home,” Jacobsson said. “At least then I can be here for my kids when they get home from school.”