COMMENTARY FROM COUNSEL

As seen in recent headlines, companies across the United States are increasingly requiring their employees to become vaccinated against the 2019 novel coronavirus (COVID-19). Big-name companies that have joined this trend include Google, Facebook, and United Airlines. In Wisconsin, multiple healthcare systems have likewise announced vaccination mandates for their workforces. With Pfizer-BioNTech gaining full FDA approval, this trend will likely increase. When considering whether to implement a vaccination requirement at your agency, it is important to consider not only the legal risks and benefits involved, but also whether it is a good business decision for the agency. These considerations will apply not only to your agency, but likely to many of your clients as well.

As mentioned in prior columns, the federal Equal Employment Opportunity Commission (EEOC) has issued guidance stating that employers may require employee vaccinations, as long as employers make accommodations for employees’ disabilities, religious practices, and pregnancy in accordance with applicable federal laws. The EEOC provides a list of possible reasonable accommodations an employer may provide, such as asking unvaccinated employees to continue to wear a face mask, providing modified work shifts, requiring periodic testing for COVID-19, or providing the employee the opportunity to telework. State laws require these accommodations as well.

In contrast to the EEOC, not all states are giving the green light to vaccination mandates. State legislatures are introducing and debating bills that would prohibit employers from mandating vaccinations or from otherwise discriminating against employees based on vaccination status. At least one state, Montana, has enacted such a statute. The Wisconsin legislature has introduced bills (including AB 25 and SB 5) that would prohibit employermandated vaccinations. While Assembly Bill 25 passed the Wisconsin Assembly in March 2021, there has been little progress since. Therefore, the current consensus is that private employers can require vaccination among their workforces in Wisconsin with little employment law risk.

However, that does not mean a vaccination mandate is risk free. This is a novel issue with limited case law surrounding it. Just last month, a federal district court in Indiana held that Indiana University’s policy of requiring vaccinations for students was permissible (in the context of a preliminary injunction motion). Similarly, a district court in Texas upheld a large hospital system’s vaccine mandate for all employees. The case is currently on appeal to the Fifth Circuit. There is also potential legal risk related to state privacy laws and the unknown long-term implications of the vaccine. If it turns out that there are some negative medical consequences from the vaccine, it could result in a surge of litigation. But employees’ adverse reactions to employer-mandated vaccines are likely covered by state workers’ compensation systems.

In addition to considering legal risks and benefits, it is equally (if not more) important for an employer to consider whether a vaccination requirement would be a good fit for the company. On one hand, a vaccination requirement could have great benefits. A 100% vaccinated workforce would almost certainly create a safer workplace. Remote employees could return to the physical workplace, which may increase productivity, efficiency and profitability. On the other hand, a vaccination requirement could also cause significant issues for employers. A mandate could lead to employee turnover with current employees quitting to take jobs where they can avoid getting vaccinated, and it might negatively impact recruiting. Retention and recruiting could be determining factors for some employers, particularly given the serious labor shortage in Wisconsin and around the country. A vaccination requirement could also be controversial among the employee base leading to employee arguments, distraction, and hostility.

Currently, private companies may implement a vaccination requirement in Wisconsin with limited employment law risk (assuming accommodations are provided as explained above). However, agencies (and other employers) should be mindful of legal risks mentioned above, and of course consider whether a mandate would be the best business decision for the agency. Before deciding one way or the other, agencies should work with legal counsel to talk through employer-specific considerations.