KH Litigation Alert: Lawsuits Over Employers' Mandatory COVID Vaccination Policies Begin to Emerge
On June 12, 2021, a federal judge in the U.S. District Court for the Southern District of Texas dismissed a lawsuit filed by 117 unvaccinated employees against their employer, Houston Methodist Hospital . The employees filed suit alleging wrongful discharge after the hospital implemented a mandatory COVID-19 policy and terminated employees who refused to get vaccinated.
Although the lawsuit was dismissed due to factual issues with the plaintiff's claims (e.g., claims that vaccines against the coronavirus are experimental trials), the litigation may provide some insight into things to come as employers begin to implement return-to-work policies.
Pursuant to recently updated Equal Employment Opportunity Commission (EEOC) guidance, there are no legal restrictions to-date that prohibit an employer from mandating that its employees receive a COVID-19 vaccine as a condition of employment .
However, individuals can assert disability-related or religious exemptions to such a requirement. As such, any mandatory vaccination policy should clearly inform all employees that they have the option to seek an accommodation on the basis of a disability or religious grounds. The fact that an employee has a qualified disability or a religious reason that prevents vaccination does not, by itself, confer a right to enter the workplace unvaccinated, however. It is theoretically possible that an employee finds that he or she may no longer be qualified to continue their employment, depending upon the particular job duties that are essential to that employee's work.
Medical Exemptions - The Americans with Disabilities Act
Historically, courts' interpretation of the Americans with Disabilities Act (ADA) concludes that an inquiry into an employee's vaccination status constitutes a "medical exam."  The ADA prohibits employers from requiring current employees with disabilities  to undergo medical examinations unless the employer can demonstrate they are "job related and consistent with a business necessity." Even then, if an employer can establish a business necessity to require vaccination, the EEOC has opined that an employee can still seek an exemption from a mandatory vaccination based on an ADA-recognized medical condition that prevents them from taking the vaccine. 
In Hustvet v. Allina Health System, the Eighth Circuit held that a health care provider who instituted a mandatory measles, mumps, rubella (MMR) vaccine policy did so subject to the business necessity of minimizing harm to immunity-compromised patients . Given the novelty of the COVID-19 vaccine, in the context of presently declining new case rates, it is unclear if a court will find the mandatory vaccination policy of a non-health care employer to be a business necessity, but it is reasonable to think that a COVID-19 vaccine requirement is comparable to the MMR vaccine policy found in Hustvet. The EEOC stated in guidance documents that those with COVID-19 may be excluded from the workplace because they present a "direct threat" to others. 
Religious Exemptions - The Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits an employer from discriminating against any employee on the basis of religion. The EEOC has opined that an employee with a sincerely held religious belief against vaccinations should be excused from the requirement as a religious accommodation  unless such accommodation would impose an "undue hardship on the conduct of the employer's business."  In Robinson v. Children's Hospital Boston, for example, a hospital employee asserted a Title VII exemption to a mandatory flu vaccination on the grounds that her Muslim religion prevented her from consuming pork, a substance that was present in a version of the vaccine in trace amounts. The District Court of Massachusetts held that the religious exemption did not apply because the employer offered the reasonable accommodation of a vaccine that did not contain pork gelatin and, therefore, its vaccination requirement was permissible. Additionally, the court stated that any further accommodation would constitute an "undue hardship"  to the employer given the adjustments that would be necessary to manage the hazards presented by an unvaccinated worker.
We have yet to see how a court will balance the coronavirus pandemic with a request for religious accommodation. However, for a company that is unable to telework, it is possible a court would find that accommodations pursuant to a mandatory vaccine policy would present an "undue hardship," especially if they required substantial changes to work practices such as isolation, finding other work for that employee, or modification of a production line.
Recommendations and Additional Considerations
A company's proposed mandatory vaccination policy should include a notification to all employees of the possibility for disability-related or religious exemptions. Second, in order to avoid an ADA claim, we recommend that a company first attempt to accommodate an employee - such as mandatory mask wearing or working from home if feasible - before taking any adverse action. Third, a waiver form for employees who assert an exemption and decline to take the vaccine (similar to the OSHA Hepatitis-B vaccine waiver)  could provide a company with a defense against an employee claim that he or she contracted COVID-19 at work or was not apprised of the risks of refusing vaccination.
Finally, the confidentiality of an employee's responses to both a mandatory vaccination policy and subsequent questioning should be included in a written policy. Employee responses should be provided to Human Resources and not a decision-making manager. For additional information and assistance in developing legal return-to-work policies that incorporate recent CDC and OSHA guidance and protect employees and employers, contact Keller and Heckman's Litigation and OSHA teams.
 Jennifer Bridges, et al. v. Houston Methodist Hospital, et al. (S.D. Tex.). June 12, 2021 (https://secureservercdn.net/184.108.40.206/7e8.6e3.myftpupload.com/wp-content/uploads/2021/05/Methodist-Lawsuit1.pdf)
 U.S. Equal Employment Opportunity Commission.What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. May 28, 2021. Available at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
See, e.g.,Hustvet v. Allina Health System, 910 F. 3d 399 (8th Cir. 2018).
 The term "disability" means a physical or mental impairment that substantially limits one or more major life activities of an individual, or a record of such an impairment, or being regarded as having such an impairment (42 U.S.C. § 12102(1)).
 EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, EEOC-NVTA-2009-3 (Updated March 21, 2020).
 Hustvet v. Allina Health System, 910 F. 3d 399 (8th Cir. 2018). Consider Hustvet along with Ruggiero v. Mount Nittany Medical Center,736 Fed. Appx. 35 (3rd Cir. 2018) where the Third Circuit held that a nurse at a medical center could potentially assert an ADA exemption to a mandatory tetanus, diphtheria, and pertussis (TDAP) vaccine because she suffered from severe anxiety and eosinophilic esophagitis.
 EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Sep. 8, 2020).
 42 U.S.C. § 2000e-2.
 42 U.S.C. § 2000e(j).
 29 CFR 910.1030 Appendix A.