Nathaniel M. Glasser, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Insider, in “Yes, Your Company Can Still Require You to Be Vaccinated Despite the Supreme Court's Ruling,” by Ben Gilbert and Mary Meisenzahl.
Following is an excerpt:
The Supreme Court on Thursday struck down the Biden administration's vaccine-or-testing mandate for companies with more than 100 employees.
Employers, however, can still make their own rules.
The decision had two major results for American workers:
- It struck down a COVID-19 vaccine-or-testing mandate for private companies with more than 100 employees.
- It upheld a vaccine requirement for healthcare workers at federally-funded facilities.
Though the court struck down the federal mandate, employers can still legally require employees to get a COVID-19 vaccine or ban them from the office, the Equal Employment Opportunity Commission (EEOC) said last year.
The agency has categorized COVID-19 as a direct threat, which allows employers to require temperature takes, masks, and social distancing.
That said, businesses with employees in multiple states face a much more complicated situation.
"Employers are in this position where they have to look very carefully at each of the states in which they operate," Nathaniel Glasser, who leads a COVID-19 compliance practice group at the law firm Epstein Becker Green, said in an interview.
In each state, businesses will have to determine: "Is there a vaccine mandate that we are required to comply with? What group of employers are covered by that mandate? And then, if there aren't any vaccine mandate requirements in that jurisdiction, but we want to implement our own, are there any restrictions in implementing that type of a mandate given the state/locality in which we're operating?" he said.
In New York City, for example, all employees of all businesses must be vaccinated.
"Businesses may not allow any unvaccinated workers to come to their workplace," the law says. "A workplace is considered any location — including a vehicle — where you work in the presence of at least one other person."
The EEOC and federal law say that employers can require employees to get vaccinated, but some states are attempting to find ways around these laws.
In Montana and Tennessee, for example, businesses aren't legally allowed to mandate vaccinations due to anti-discrimination laws written and passed during the COVID-19 pandemic.
Arkansas, Florida, and Texas have also passed laws specifically prohibiting businesses and government agencies from requiring vaccinations. More than 100 employees are suing one Texas hospital after saying that vaccines would be required for continued employment.
With federal and state laws in direct conflict, it's unclear how things will ultimately shake out.
This legal gray area is likely why few companies have outright required vaccines for employees. While some have attempted to encourage vaccinations with perks like bonus payments, it remains unclear whether those with mandates will actually enforce them without the federal backstop.
