Nancy Gunzenhauser Popper, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “Gov't Vaccine Mandates Pave Way for Private Sector Policies,” by Anne Cullen. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Department of Veterans Affairs, the state of California and New York City all announced COVID-19 vaccination mandates for their employees Monday, taking steps that experts say will boost private employers' confidence to install their own vaccine requirements.

Under a policy unveiled Monday by the Veterans Affairs Department, health care personnel within the agency will have eight weeks to get fully vaccinated or be penalized. California and New York City also issued directives Monday that government employees either get inoculated or face weekly COVID-19 testing.

On top of these mandates, the U.S. Department of Justice issued guidance this week concluding that federal law doesn't bar public or private entities from imposing vaccination requirements. And President Joe Biden told reporters Tuesday that a potential federal government-wide mandate is "under consideration right now." 

Management-side employment lawyers said the public sector focus on requiring municipal workers to get inoculated could drive private employers to follow suit in their own workplaces. …

Municipalities Taking the Litigation Lead

In that same vein, experts said these requirements could operate as a kind of bellwether for businesses to see how these requirements will fare in the legal system.

"Having state and city governments push this forward may lead to more enforcement action and litigation there first," said Epstein Becker Green partner Nancy Gunzenhauser Popper. "That may be a testing ground for private employers to see the difficulties they may run into trying to enforce a policy when it's not legally required."

Right now, the legal precedent on these issues is thin. Suits resisting COVID-19 vaccinations are, like the vaccines themselves, a relatively new phenomenon.

There has been some litigation over mandatory vaccination policies in workplaces — including a high-profile case against a Houston hospital where the vaccination rule was upheld — and experts say it's inevitable that more suits are in the pipeline as these policies gain steam.

"Litigation is certainly always on the horizon," Popper said. "We've already seen that happen with cases particularly in the health care industry where there was pushback."

The mandates from the municipal sector could very likely face court challenges, and experts said if the judiciary continues to back the policies, it may sway businesses to install their own.

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