(BPT) - On November 4, 2021, the Biden administration released a new federal rule identifying COVID-19 as an occupational hazard and mandating COVID-19 vaccination for workers. The mandate would apply to health care workers at facilities that participate in Medicaid or Medicare, federal contractors and federal employees, as well as businesses with more than 100 employees. It does not apply to employees who work remotely, outside, or otherwise don’t report to workplaces where other people work or shop. While it was set to go into effect January 4, 2022, on November 6, 2021, the United States Court of Appeals for the Fifth Circuit issued an order to temporarily stay the mandate in response to a lawsuit filed by opponents on November 5, 2021. The resolution remains forthcoming.
Top-rated and award-winning Washington, D.C.-based federal employment law attorney John P. Mahoney, Esq. has some recognized expert level insights on the legality of COVID-19 vaccine mandates, as well as what he believes the future of this legal battle looks like. Mahoney has devoted his entire nearly 30-year legal practice to representing federal employees, unions, employee associations, contractors and agencies in federal employment law cases, as well as private sector companies and employees in employment law cases in DC and MD. He has garnered the highest level of peer rating of ‘AV Preeminent®’ from Martindale-Hubbell® due to his recognized ethics and legal talent, and he has been named in The Wall Street Journal as a “Top-Rated Labor & Employment Lawyer.”
“Most private sector employees are ‘at will,’ meaning their employment can be terminated at any time — for any reason, no reason, even a factually mistaken reason — as long as the real reason is not EEO discrimination or potentially whistleblower retaliation,” said Mahoney. “Even federal government employees, most of whom have a Constitutionally protected property interest in their continued federal employment — which cannot be taken away without due process — can be fired for failure to follow lawful directives by their employers. Given that, all employees in the U.S. need to realize that they can be fired for failing to comply with their employers’ legal COVID-19 vaccine mandates.”
Under the federal rule, health care workers, federal contractors, and federal workers aren’t given the option to test and mask instead of getting vaccinated. In other private sector businesses with 100 or more employees, employees could be given the option to test weekly and would be required to wear a mask in the workplace if unvaccinated. For those employees, this additional option further challenges the likelihood of legal action success against the mandate.
“Companies, including health care settings, have a legal obligation to keep their workers and customers/patients safe; thus, they can generally require vaccines in the context of setting and enforcing terms and conditions of employment,” said Mahoney. “However, some employers may have to provide reasonable accommodations to those with health or religious reasons for not being vaccinated. That said, accommodations that jeopardize the health and safety of the employee or others in the workplace, such as co-workers or customers, may be deemed an unreasonable accommodation or an undue burden on the employers’ operations, which may thus legally be denied.”
Looking at other legal challenges to COVID-19 vaccine mandates, for the most part, the mandates have stood due to the at-will nature of employment in most areas. Whether state or local laws can prohibit vaccine mandates is still uncertain, though the federal regulation is intended to preempt state and local laws.
Most employers are finding that carrot-and-stick approaches are largely effective for getting employees vaccinated. While employee absences due to COVID-19-related issues have raised legal issues for employers, under the regulations, employers must provide paid time off for their staff to get a shot and recover from any side effects of the vaccines.
Recently, the United Stated Court of Appeals for the 6th Circuit has been chosen by lottery to decide all challenges to the Administration’s COVID mandates, which could ultimately be appealed to the Supreme Court of the United States, the Bar of which Court Attorney Mahoney is a member.
“All employees, including federal employees, should do the right thing for the country, their neighbors, and public health. Protect their own job security by voluntarily getting fully COVID-19 vaccinated immediately, if possible,” urged Mahoney.