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Authored By: Isom Carden
Member, American Journal of Trial Advocacy
For individuals all over the United States, 2020 was a year to remember, and hopefully a year to eventually forget. On March 11, 2020, the World Health Organization (WHO) declared Covid-19 a pandemic.[i] Soon after being declared a global pandemic, the United States took action with mask mandates, the closure of schools and businesses, no sail orders for cruise ships, and travel restrictions with airflights.[ii] As two weeks turned into two months, and then into over a year, the question remains… will we ever get back to normal? Luckily, the first vaccine was produced by Pfizer/BioNTech and cleared for emergency use by the Food and Drug Administration (FDA) on December 11th, 2020.[iii] Soon after the Pfizer vaccine was approved, the Moderna and Janssen (Johnson & Johnson) vaccines were approved for emergency use.[iv] With the vaccine now widely available, still only 57.5% of the United States’ population are fully vaccinated.[v] President Biden announced vaccination requirements for federal employees in July of 2021 and encouraged the private sector to encourage vaccination as well.[vi] So the question remains, can a private employer legally mandate Covid-19 vaccinations in the workplace?
On May 24, 2021, Governor Kay Ivey of Alabama signed into law Act 2021-493.[vii] This Act established that “no government, school, or business in Alabama may demand that a constituent, student, or customer, respectively, be vaccinated for COVID-19 or show proof of his or her vaccination for COVID-19.”[viii] Subsection (a) of Act 2021-493 essentially prohibits a state or local government from discriminating against an individual based upon his or her vaccination status, or his or her refusal to become vaccinated against Covid-19 or to present immunization records.[ix] It also lists that a state or local government cannot release a list of those who are vaccinated or a list of those who are not vaccinated.[x] Subsection (b) prohibits any state or local government entity from requiring individuals to show proof of vaccination against Covid-19 as a condition for receiving a government service or as a condition for entering a government building.[xi] Subsection (c) of the Act limits which immunization records an educational institution can keep of its students to what as required by the institution as of January 1, 2021.[xii] Subsection (d) prohibits any entity or individual that conducts business in Alabama from refusing to provide goods or services based upon the individual’s vaccination status.[xiii] The Attorney General also states that subsection (d) “cannot be read to prohibit private employers from requiring employees to vaccinate against COVID-19.”[xiv] Therefore, if a private company chooses to mandate vaccinations for its employees, it will be able so as long as the company follows Title VII and ADA guidelines.
Federal equal employment opportunity laws do not prevent employers from requiring their employees to be vaccinated against Covid-19, subject to reasonable accommodations of Title VII and the Americans with Disabilities Act (ADA).[xv] Title VII and the ADA require that employers provide employees with reasonable accommodations for not getting the Covid-19 vaccine if they have a disability or their sincerely held religious beliefs, practices, or observances.[xvi] However, if providing a reasonable accommodation would subject the employer to an undue hardship, then the employer does not have to provide the accommodation and can let go of the employee.[xvii] In analyzing an undue hardship for an accommodation due to a religious belief under Title VII, an undue hardship has to be more than a minimal cost or burden on the employer.[xviii] Under the ADA, the undue hardship in providing the accommodation to the disabled employee must cause a significant difficulty or expense to the employer to implement.[xix]
On September 9th, 2021, President Biden signed an executive order which ordered federal contractors to comply with the guidance issued by the Safer Federal Workforce Task Force.[xx] The Task Force published their guidance on September 24th, 2021.[xxi] Under this guidance, federal contractors are required to comply with the following protocols: 1) Vaccination of all employees subject to accommodations by Title VII and the ADA; 2) Compliance with masking and physical distancing guidelines published by the Task Force; and 3) Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.[xxii] All of the covered employees under this guidance must be vaccinated by December 8th, 2021.[xxiii] Some federal contractors in Alabama that are subject to this executive order and Task Force guidance include companies such as Boeing, Lockheed Martin, Northrop Grumman, Raytheon, and General Dynamics. In compliance with this executive order, Boeing has required that all employees be fully vaccinated by the December 8th deadline or have an approved exception, whether that be a sincerely held religious belief or a disability.[xxiv] Lockheed Martin has followed suit and required that their employees be vaccinated by the deadline as well unless they qualify for an eligible accommodation.[xxv] Failure to comply with the December 8th deadline could result in forfeiture of government contracts, or the firing of employees from their workplace.
President Biden has made it a plan of his to “vaccinate the unvaccinated.”[xxvi] His plan originated with the mandated vaccinations of federal employees, then the mandated vaccinations of federal contractors, and he now has The Department of Labor’s Occupational Safety and Health Administration (OSHA) working on a new wave of mandates.[xxvii] OSHA is developing a rule that would require employers that employ 100 or more employees to require vaccination of its employees, or that the employees produce a negative Covid-19 test on a weekly basis in order to come to work.[xxviii] In order to enforce this mandate, OSHA will issue an Emergency Temporary Standard (ETS) to execute the mandate.[xxix] This mandate will impact over 80 million workers in private sector businesses with 100+ employees.[xxx]
Governor Kay Ivey of Alabama issued an executive order on October 25th, 2021, to challenge these mandates.[xxxi] Many states, including Alabama, are expected to assert immediate legal action over the Biden vaccination mandates by citing illegal federal overreach.[xxxii] Ivey’s approach to get more people vaccinated would be through “education, transparency, communication, and persuasion – not government coercion.”[xxxiii] She also cites that the Biden vaccine mandate for federal contractors and private employers would increase vaccine skepticism and disrupt the state’s economy.[xxxiv] President Biden, on the other hand, has signed these executive orders to protect the national economy by ensuring the health and safety of the federal workforce which would in turn help in the efficiency of the civil service and supply chain. [xxxv]
Vaccinations across the country are rising as there are now 191 million U.S. citizens vaccinated against Covid-19.[xxxvi] With President Biden’s sweeping vaccine mandates, federal workers, federal contractors, health care workers, and employers with more than 100+ employees will be required to get the Covid-19 vaccine. As for private employers with less than 100 employees, they are free to require or not require the vaccine for its employees as long as they comply with Title VII and ADA exceptions. As Governor Ivey mentioned in her executive order, she plans to take immediate legal action over the vaccine mandates.[xxxvii] However, under the Supremacy Clause of the United States Constitution, the federal law is the supreme law of the land, and supersedes any state law that conflicts with it.[xxxviii] Litigation against vaccine mandates by the federal government will take place in the months to come. For now, its shots or you’re fired for many Americans working for the federal government or for a federal contractor.
[i] Centers for Disease Control and Prevention, CDC Museum Covid-19 Timeline (last reviewed Aug. 4, 2021) https://www.cdc.gov/museum/timeline/covid19.html#:~:text=January%2020%2C%202020%20CDC,18%20in%20Washington%20state.
[iii] Pfizer, Pfizer and BioNTech Celebrate Historic First Authorization in the U.S. of Vaccine to Prevent Covid-19, (Dec. 11, 2020) https://www.pfizer.com/news/press-release/press-release-detail/pfizer-and-biontech-celebrate-historic-first-authorization.
[iv] U.S. Food & Drug Admin., Moderna Covid-19 Vaccine, https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/moderna-covid-19-vaccine; U.S. Food & Drug Admin. Janssen Covid-19 Vaccine, https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/janssen-covid-19-vaccine.
[v] Centers for Disease Control and Prevention, Covid-19 Vaccinations in the United States (last updated Oct. 26, 2021) https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total.
[vii] 2021 Alabama Laws Act 2021-493 (S.B. 267), (May 24, 2021).
[viii] Alabama Attorney General Steve Marshall on Covid-19 Vaccinations & Act 2021-493 at 1, (July 26, 2021). https://www.alabamaag.gov/Documents/news/AL%20COVID%2019%20Vaccine%20Guidance.pdf.
[ix] Id. at 2.
[xiii] Id. at 3.
[xv] U.S. Equal Employment Opportunity Commission, What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, (last updated Oct. 28, 2021) https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
[xvi] 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 12112(b)(5)(A).
[xvii] Batson v. Salvation Army, 897 F.3d 1320, 1326 (11th Cir. 2018); see also Young v. Sw. Sav. & Loan Ass’n, 509 F.2d 140, 144 (5th Cir. 1975).
[xviii] U.S. Equal Employment Opportunity Commission, supra note xv.
[xx] Exec. Order No. 14,042, Executive Office of the President, (Sept. 9, 2021).
[xxi] The White House, New Guidance on COVID-19 Workplace Safety for Federal Contractors, https://www.whitehouse.gov/omb/briefing-room/2021/09/24/new-guidance-on-covid-19-workplace-safety-for-federal-contractors/.
[xxv] Lockheed Martin, Lockheed Martin’s Response to Covid-19, https://www.lockheedmartin.com/en-us/news/statements-speeches/2020/lockheed-martin-response-covid-19.html (last updated Oct. 11, 2021).
[xxvi] The White House, supra note vi.
[xxxi] Ala. Exec. Order No. 724 (Oct. 25, 2021).
[xxxv] Exec. Order No. 14,042, Executive Office of the President, (Sept. 9, 2021); see also supra note xx.
[xxxvi] Centers for Disease Control and Prevention, supra note v.
[xxxvii] Ala. Exec. Order No. 724 (Oct. 25, 2021).
[xxxviii] U.S. Const. art. VI, cl. 2.