Legal Limbo: Firms and their clients scramble to meet the federal vaccine mandate
Photo illustration by Sara Wadford/ABA Journal
The Biden administration’s workplace vaccine mandate was scheduled to take effect Jan. 10. Pursuant to the Occupational Safety and Health Administration’s Emergency Temporary Standard, employees at businesses with more than 100 workers must be fully vaccinated or submit to masking and weekly testing.
But on Nov. 6, the New Orleans-based 5th U.S. Circuit Court of Appeals granted a temporary restraining order against President Joe Biden’s vaccine-or-test mandate. The court ruled “the petitions give cause to believe there are grave statutory and constitutional issues with the mandate.” In December, the 5th Circuit’s stay was vacated.
Also in December, the U.S. District Court for the Southern District of Georgia put a vaccination mandate for federal contractors on hold after finding Biden exceeded his authority.
The U.S. Supreme Court heard oral arguments Jan. 7 in two cases challenging Biden’s vaccine policies. After the ABA Journal went to press the Supreme Court blocked the vaccine-or-test mandate for those who work at companies with more than 100 workers but ruled to allow a vaccine mandate for certain health care workers.
“A lot of employers are in holding patterns waiting to see what happens,” says Susan Huntington, who is chair of Day Pitney’s health care practice and based in Hartford, Connecticut.
“Nobody knows how long the [temporary restraining order] will last,” adds Michelle Roberts Gonzales, a senior associate in Hogan Lovells’ Los Angeles office. “We have clients in Texas and Florida concerned about potential conflicts or who are federal contractors, so we’re telling them to prepare as if the OSHA regulation is going forward; that’s the safest course of action.”
The stay has thrown a monkey wrench into what was already a chaotic process for some businesses and the law firms advising them to prepare and comply with the planned onset of the vaccine mandate. For one thing, many employers do not routinely keep medical information on employees. As such, it’s imperative that they be cognizant of safety and confidentiality issues.
“We have been advising clients to think about what info they need to collect under the new OSHA rules,” Gonzales says, “so that they collect what they need to collect and no more. Have employees just submit their medical vaccination record and not any other medical information they had the same day as the vaccination.”
Wynter Deagle, a partner in the privacy and cybersecurity team in Sheppard, Mullin, Richter & Hampton’s San Diego office, points out that companies and firms doing business in California are required, pursuant to the California Consumer Privacy Act, to disclose to employees what data they’re collecting and how they’re going to use it.
“In addition, you have a security obligation,” Deagle says. “You have to protect the data in your possession, so how are you going to protect it? And how do you make sure you’re segregating that data so that people who don’t need access to it can’t access it?”
Deagle adds that if employers choose to store confidential data in their own systems, they must determine whether those systems are secure enough. “At the end of the day, it’s always the employer’s problem, even if you put your trust in a third-party cloud system, because if there’s a breach of the data, the company that collected the data is responsible,” she says.
Another issue companies and firms are wrestling with is crafting acceptable vaccination policies. Adam Rosenthal, a labor and employment partner in Sheppard Mullin’s San Diego and Los Angeles offices, says he is in the process of bringing clients up to speed on the OSHA standard, including possible accommodations for medical or religious reasons. “I’m getting [frequent] calls on the issue,” Rosenthal says. “The employer has a right to ask questions and delve deeper into the issue to make sure it’s not just a political view or a nonreligious belief. Historically, employers have not tested the bona fides of an employee’s request; however, with the COVID vaccine, we’ve seen an uptick in accommodation requests among clients.”
Gonzales adds that employers must deal with reasonable accommodations on a case-by-case basis.
“Most employers have experience in this kind of process with disability,” she says. “In religious cases, you look for a reasonable accommodation that allows them to carry on with their duties, and that will probably do the trick.”
Leading by example
Law firms are also considering these issues as they push to welcome employees back to offices that have had limited attendance since March 2020.
Rosenthal says his firm has a strict vaccination policy for on-site workers. “To be in the firm’s office, employees must be vaccinated with the Pfizer or Moderna [two-dose] vaccine or the one-dose Johnson & Johnson vaccine,” he says. “Employees in some offices have to wear masks, depending on the jurisdiction in which they are located.”
Currently, Rosenthal adds, the firm has a flexible working arrangement that encourages employees and partners to make a “best effort to come into the office and be with their team.”
Rosenthal anticipates that in the new year “we will have a more robust return to office work, but there will still be opportunities to work from home.”
Huntington says Day Pitney has been using the Go Evo vaccine-screening app since March 2020 for everyone who works there.
She recommends that employers use a tracker that allows users to input and record their data in real time.
She notes that her firm’s vaccine policy allows for employees to apply for religious or health exemptions but not for invalid or incorrect reasons, such as believing there’s a chip in the vaccine.
“The employee has to demonstrate a sincerely held religious belief, and we have to find that the request is consistent with that belief,” she says. “We have granted exemptions to the extent we can if the job doesn’t require them to be in the office.”
This article has been updated to reflect events that happened after the February-March 2022 issue went to press.
