COVID-19 created unprecedented challenges for private employers in the United States. Employers—many of whom were technologically unprepared—were forced to rapidly adapt from their on-site operations to a virtual environment supported by fully-remote employees. That, in addition to staying abreast of ever-evolving executive orders, new legislation and regulations, COVID-19 guidelines from federal and state public health officials, and straining to provide a host of flexible accommodations to employees with concerns about workplace safety and exposure to COVID-19. With several COVID-19 vaccines now available to the public, many of these challenges may soon be in the rearview. At least the hope is that continued distribution of the COVID-19 vaccine to the public at-large will bring herd-immunity and a return of normalcy to the American workplace.
However, the COVID-19 vaccine itself has already started to bring new chaos and legal challenges to private employment. In many states, the vaccine became available to the general public beginning in April 2021, with the White House announcing that all American adults must be eligible for vaccination no later than May 1, 2021. While public confidence in the vaccine has grown over time, currently, only 60-70% of Americans report that they are definitely or likely going to receive the vaccine, and only 32% have been fully vaccinated as of May 1, 2021. At these rates, the United States may not reach “herd-immunity,” which is generally defined as 80% of the population vaccinated and/or with antibodies. Additionally, there is no guarantee that everyone who initially received the vaccine will receive additional booster shots if needed once the length of the vaccine’s effectiveness is determined. As a result, the availability and distribution of the COVID-19 vaccine to the general public has once again thrust private employers in the U.S. into uncertainty. This time, the questions are: (1) whether employers should require the COVID-19 vaccine as a condition of continued employment or not; and, relatedly, whether employers should allow employees to choose for themselves whether to vaccinate but then place restrictions on non-vaccinated employees that prohibit them from entering the office or that otherwise limit their working interactions with employees, customers, vendors, and the public.
Health and government officials are pushing for widespread vaccination. Some states may go so far as to require vaccination with very limited exemptions. It seems unlikely, however, that a majority of states will implement such a requirement, and states that do require the public to receive the COVID-19 vaccine will likely face legal challenges that will play out in the courts for years.
In the absence of a nationwide or statewide vaccine mandate, focus may shift to places where non-government actors will best be able to influence public vaccination: namely, places of public accommodation and private employment. In the coming months, private employers may find themselves facing immense social and political pressure to require their employees to obtain the COVID-19 vaccine. Employers may also find a competitive advantage in recruiting employees or offering services to the public if they are able to represent that they provide a “safe” environment due to a mandatory COVID-19 vaccine policy.
Non-healthcare employers requiring vaccines as a condition of employment have not been the norm throughout U.S. history, and would likely be met with resistance by a formidable segment of working Americans. A dramatic pivot in employer-vaccine policies also raises a myriad of legal issues, including, but not limited to: (1) refining the legally recognized exemptions for objecting employees; (2) the potential disparate impact of such policies on protected classes of employees; (3) employer liability for vaccine reactions by employees whom the employer required to obtain the vaccine; and (4) employer liability for the transmission of COVID-19 by employees whom the employer allows to be unvaccinated.
This Article examines the pre-COVID-19 legal paradigm for mandatory vaccine policies adopted by private employers and identifies the obstacles, ambiguities, and unresolved questions presented by the existing paradigm—all of which will likely be exasperated if mandatory vaccine policies are implemented on a wider scale. In light of these challenges, this Article evaluates the potential for state legislatures to regulate employer-mandated vaccine policies by modeling legislation off existing school vaccine laws in fifteen states.