Many companies have put in place a mandate that complies with employment practice law, for any workers in their employ to get vaccinated against COVID or vigorous testing. This mandate can and has been superseded by state laws that either invoke a standard for COVID testing and vaccinations or eliminates them entirely.
In August, when the Pfizer vaccine was fully authorized, President Biden issued a federal mandate for government workers to get the vaccine or face either testing or termination. This eventually evolved into requiring companies employing over 100 people to require vaccination of their workers. In many cases, a federal order will override the states unless it is against the Constitutional rights that states are allowed vs the federal government. The Fifth Appeals Court based in Louisiana had ordered an injunction, calling the mandates among other things, unconstitutional. Judge Kurt D. Engelhardt, in an opinion for the three-judge panel, called the Biden policy “fatally flawed” and “staggeringly overbroad,” arguing that it likely exceeds the authority of the federal government and raises “serious constitutional concerns.” (1) With the court order in place until it works its way through the legal system, states are allowed to do what they want including forbidding the mandates on private workers. (CNBC)
In the state of Florida, Governor Ron DeSantis has taken the side of not allowing mandates. Last week, the governor signed four bills that targeted various mandates throughout the state of Florida. One of these is that private employers cannot force mandates as part of the employment. Instead, they must allow employees to opt out of the mandates, regardless of medical or religious exemptions. "I told Floridians that we would protect their jobs, and today we made that the law," DeSantis said in a press release last week. "Nobody should lose their job due to heavy-handed COVID mandates, and we had a responsibility to protect the livelihoods of the people of Florida. I’m thankful to the Florida Legislature for joining me in standing up for freedom."(2)
Among the many companies affected by this mandate is the Disney World resort and the various hospital systems in the state. Disney in response to the new law in place, has already declared that their cast members and various staff will no longer be required to be vaccinated. Instead, they will be forced to do social distancing and masking. "We believe that our approach to mandatory vaccines has been the right one as we've continued to focus on the safety and well-being of our cast members and guests," a Disney spokesperson said in an emailed statement, adding that 90% of Florida employees are already vaccinated. "We will address legal developments as appropriate," the spokesperson said. (3)
From a legal standpoint, The EEOC clarified that it was implicit in its prior guidance that employers generally may require all employees physically entering the workplace to be vaccinated except where an employer must provide a “reasonable accommodation” under Title VII of the ADA.
Employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on, or disproportionately excludes, employees based on their race, color, religion, sex, or national origin under Title VII or age under the Age Discrimination in Employment Act. The EEOC recommends that employers keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.(4)
In essence, unless an employee has a religious or medical reason why they can’t take the vaccine, employers can make employees get the shots or be subject to testing. Terminations may not be a condition, however, employers would need to know their status to determine how to move forward with their staff.
Mandates have become a contentious issue in the US and thus many companies have taken various positions on it. Each state has its own rules concerning these, with a lack of a significant federal mandate. Consult your state laws on this before making a company decision.
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