Mandatory Employee Vaccines – Coming to A State Near You? (UPDATED) – JD Supra

While available vaccines have proven highly effective in controlling COVID-19 and its variants to date, the virus continues to spread, particularly among unvaccinated populations. In the face of flagging interest, officials across the U.S. have tried different approaches to increase vaccination rates. For example, officials launched incentive programs, stressed personal responsibility, deployed mobile vaccination units, and coordinated with corporate and community partners to encourage and effectuate vaccine uptake.

Having exhausted those avenues, and with the rise of more contagious COVID-19 variants, some officials are going a step further. Federal, state, and local authorities have announced that, in essence, they are requiring certain categories of workers to be vaccinated. Generally, under these types of mandates, workers who decline vaccination must comply with measures that do not apply to their vaccinated counterparts, such as weekly COVID-19 testing and/or mask wearing. Depending on the jurisdiction and the sector involved, however, unvaccinated workers might not have such alternatives.

The chart below – last updated March 4, 2022 at 8:00 a.m. (Central) – provides basic information on vaccination mandates issued at the federal and statewide levels. It covers directives that affect public or private entities as employers.

This chart also includes information about state responses to the vaccine-or-test emergency temporary standard (ETS), which was released on November 4, 2021 by the federal Occupational Safety and Health Administration (OSHA). Following the U.S. Supreme Court’s decision staying enforcement of the ETS, OSHA announced that it has withdrawn the ETS, effective January 26, 2022. The “agency is not withdrawing the ETS as a proposed rule.” 

This post does not address local guidance, orders that relate to customer or patron vaccination status (e.g., “vaccine passports”), narrower mandates specific only to schools or educational institutions, or recommendations that do not impose obligations.  

In addition, this post does not address all pending litigation over particular mandates, or other significant substantive issues related to employee vaccinations, including potential leaves of absence, discrimination, accommodation, incentives, and privacy concerns. As a result, employers should consult with counsel for guidance on these legal questions and the latest developments.

While mandatory vaccine programs are the focus of this post, employers should be aware that numerous states have taken the opposite approach, adopting new laws intended to curtail workplace vaccine mandates. A couple of states — Montana and Tennessee — have sought to ban such mandates entirely. Others have enacted laws that may not preclude private employers from requiring employee vaccinations but, rather, impose specific limitations on any such programs. For example, several states enacted laws that require private employers to offer expanded exemption options for employees who do not wish to be vaccinated for various reasons. Such laws are not summarized in the chart below but are in place in the following1 jurisdictions:  

Because the COVID-19 situation is dynamic, employers should consult with counsel for the latest developments and updated general and industry-specific guidance.