- The beginning of the end for vaccine mandates. As the coronavirus pandemic winds down, many employers are rescinding vaccine mandates.
- Minor risk for lawsuits. Wrongful-termination lawsuits could soon follow as a result of the change but organizations that executed mandates in a uniform manner are less at risk.
- Adopt transparent and procedural actions. Documenting the reasons for rescinding the mandate will help ensure a consistent message to the workforce.
Despite the nation’s largest city recently making vaccination for the coronavirus optional for current and prospective city workers, that hasn’t stopped the wrongful-termination lawsuits from being filed against it.
Indeed, a group of New York City teachers who were denied exemptions from the city’s COVID-19 vaccination requirement recently filed a lawsuit in state court, where a similar case filed by other city workers was successful.
“What we’re seeing is widespread religious accommodation discrimination,” said civil rights attorney Sujata Gibson, who filed the suit on the teachers’ behalf.
The vaccine mandate for city workers was set in October 2021 by former Mayor Bill de Blasio and was one of the most aggressive steps in the nation to increase vaccination rates. It prompted hundreds of workers to be fired and a series of lawsuits after many were denied religious exemptions.
Overall, about 1,780 city workers were terminated for not getting vaccinated; those workers cannot automatically return to their previous positions but can apply for positions with their former agencies through the normal hiring process, city officials said.
A Staten Island judge in October ordered city workers who were fired to be reinstated with back pay to their jobs, finding that the health department’s order for public workers to be vaccinated exceeded its authority.
In his decision, Judge Ralph Porzio wrote: “There is nothing in the record to support the rationality of keeping a vaccination mandate for public employees, while vacating the mandate for private sector employees or creating a carveout for certain professions, like athletes, artists and performers. This is clearly an arbitrary and capricious action because we are dealing with identical unvaccinated people being treated differently by the same administrative agency.”
What This Means for Non-Government Employers
Meanwhile in the private sector, there were thousands of workers who were terminated by employers or denied jobs in the past few years because they weren’t vaccinated.
Back then, vaccination mandates were triggered by a health emergency declared by the government, so employers were within their rights to codify vaccination as a condition of employment. Now, many of those employers are likely to move this year to drop any mandates they may have enacted during the pandemic.
But what are the risks and how should you proceed if you were an employer planning to rescind a vaccine mandate, or fired employees for refusing to comply with the mandate?
As with anything in the HR and employment law arena, the keys are consistency, uniformity and proof that decisions are made for legitimate business reasons, says Reed Smith Partner Mark Goldstein.
“Employers who are considering rescinding vaccine mandates will therefore want to document the business reasons underlying such rescission,” he said. “There could be a whole host of business reasons why an employer might want to rescind a vaccine mandate — whether such mandate was required by law or simply by company preference — and employees will likely have questions in that regard.”
Documenting the reasons for rescinding the mandate will help ensure a consistent message to the workforce and best position the business going forward in terms of COVID-related matters, Goldstein added.
The pandemic, of course, was a “constantly evolving situation,” he said. “What was appropriate, reasonable, and even necessary in 2021, for instance, may no longer be in 2023.”
As such, Goldstein said, “as long as employers’ prior actions with respect to a vaccine mandate complied with applicable law, then making the decision now to rescind such a mandate should not adversely affect such prior actions.”
Recent Rulings Support Employer Policies
A federal judge’s decision in Pennsylvania in favor of an employer against an employee’s claim of discrimination over a vaccine mandate may hold as precedent in how courts view workers’ claims in such cases going forward.
Chief U.S. District Judge Matthew Brann for the U.S. District Court for the Middle District of Pennsylvania dismissed a putative class action in 2022 representing approximately 100 healthcare company employees brought against their employer, Geisinger Clinic.
In the suit, the employees challenged their employer’s policy requiring employees to either be vaccinated for COVID-19 or agree to regular testing and quarantining. In dismissing the complaint, the court rejected the employees’ religious discrimination, constitutional, and state law claims, calling the employees’ evidence “a collection of distorted statements and anti-vaccine hocus-pocus.”
The ruling is “the latest example of a court backing employers who choose to implement workplace safety policies requiring COVID-19 vaccines or testing,” wrote Ogletree Deakins shareholders Stacy Bunck and Tiffany Cox Stacy. Such a ruling may be increasingly important as some states curtail employers’ ability to require employees to get COVID-19 vaccines, they add.
Meanwhile, after a former producer recently filed suit against ESPN over its vaccine mandate, Michael Elkins, an attorney with MLE Law in Fort Lauderdale, Florida, weighed in on its chances of success.
So far, he said, such “challenges to vaccine mandates as a concept have seen little to no success.”
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