Big employers from Walmart to Starbucks have recently reinstated mask mandates for their workers. The reason could be more legal than scientific: While there’s little chance a fully vaccinated employee will get seriously ill from workplace exposure to Covid-19, companies could be on the hook for unvaccinated workers and customers if they don’t follow shifting guidelines from the Centers for Disease Official and local health authorities.
Faced with a virus that seems to be outpacing an already unpredictable legal system and fierce political divisions, businesses are left guessing the answers to a number of perplexing questions. Can they require employees to be vaccinated? Can they be sued if the vaccine makes them ill? What about customers? Does the fact vaccines are being administered under an Emergency Use Authorization, instead of full Food and Drug Administration approval, change the equation?
In most cases, the question of whether a company can be liable for Covid-related injuries comes down to the centuries-old idea of recklessness. If they follow the latest advice of health officials and their own industry guidelines, businesses can largely avoid getting sued – or can be reasonably confident lawsuits will be unsuccessful. While Walmart is involved in a prominent wrongful-death suit in Illinois and New York Attorney General Letitia James is suing Amazon over its workplace Covid practices, a much-anticipated wave of similar litigation hasn’t materialized.
“It will likely turn on what is considered best practice,” said William Martucci, a partner with Shook, Hardy & Bacon in Washington who focuses on employment law. “If that is changing, it’s a duty of management to keep abreast of appropriate CDC guidelines.”
So when the CDC shifted its position to recommend even the vaccinated wear masks indoors, big employers quickly imposed mask mandates on their workers. They adopted the new rules as “a precaution, and it also has the virtue, at least for the retail customer, of providing a sense of protection, a sense of compliance with CDC guidelines,” Martucci said.
How about vaccine mandates? Federal law offers sweeping protection to vaccine manufacturers and “administrators” under the National Vaccine Injury Compensation Program, although the definition of administrator is vague. The Public Readiness and Emergency Preparedness Act provides similar protection for anyone involved in distributing drugs or care during a public health emergency.
Neither law will likely cover employers that require their workers to get the vaccine. But that may not matter, as courts have so far been hostile to lawsuits challenging vaccine mandates, even when those suits claim it is illegal to force workers to accept the vaccine before it is fully approved.
More than 100 employees sued Houston Methodist Hospital to block a vaccine mandate, saying the they were being forced to participate as “human guinea pigs” while the vaccine was still under EUA. A federal judge in June dismissed the case, saying it was irrelevant because federal law authorizes the Health and Human Services Dept. to decide if experimental drugs are safe to be distributed. The law “does not confer a private opportunity to sue the government, employer or worker,” the judge concluded.
The Seventh Circuit more recently upheld Indiana University’s vaccine mandate, including a requirement that exempt students wear masks and be tested twice a week. The court cited Jacobsen v. Massachusetts, a 1905 Supreme Court decision rejecting a challenge to the state’s smallpox vaccination law as a violation of the due process clause of the 14th Amendment. Given that precedent, the court said, “there can’t be a constitutional problem with vaccination against SARS-CoV-2.” The court also upheld Indiana University’s power to require vaccination instead of resorting to distance learning, saying it couldn’t force that option on an institution that “believes vaccination (or masks and frequent testing of the unvaccinated) will make in-person operations safe enough.”
“The law so far has been relatively straightforward, perhaps surprisingly so,” Martucci said.
Public universities and government employers may face tougher legal battles over vaccine mandates, under arguments based in the 14th Amendment right to due process. The New Civil Liberties Alliance, a libertarian-leaning group, is challenging George Mason University’s vaccine mandate for students, saying the Virginia school is violating the fundamental rights of its students.
“Public institutions are subject to constitutional requirements,” unlike private companies and universities, said Jenin Younes, an NCLA attorney who said she personally believes in the importance of vaccines.
While courts have so far rejected the argument vaccines can’t be required if they are still under an emergency use authorization, Younes said the matter isn’t fully decided yet.
“A vaccine recipient must give free and informed consent,” Younes said. “When you’re basically forcing someone to get an experimental vaccine, it flies in the face of the letter and spirit of the statute.”
Employers that require vaccines must be careful to follow Equal Employment Opportunity Commission and state regulations and offer exceptions for medical and religious reasons. Medical exemptions are relatively easy to determine, but religious exemptions are trickier. The employer is entitled to ask whether a worker has a sincere religious objection, but few tools to challenge it. One option is monitoring public social media.
Vaccine opponents “sometimes express their opposition in other ways,” said Martucci. “If the basis for their opposition has been articulated in ways that have nothing to do with religion, those reasons can be looked at with a bit more care and skepticism.”
Companies must find a reasonable accommodation for employees who can’t work in close contact with others because they are unvaccinated, but there are limits. Work-arounds that impose an “undue hardship” on the employer, especially in managing the rest of the work force, can be avoided. For example, a warehouse worker with no other skills who refuses to be vaccinated or wear a mask might not win a fight to be accommodated by working at home, while an employee who performs most of her job duties on a computer might have the right to work remotely.
Employers have one more layer of protection against Covid lawsuits: Workers’ compensation. Laws differ among the states but generally as long as company adheres to current health and safety guidelines, an injury at work is routed through the workers’ comp system instead of the courts.