Should Employers Mandate the COVID Vaccine? A Deeper Look at the Litigation, Arguments and Responses from Across the U.S.

By: | August 3, 2021

Lainee Beigel is a Senior Vice President with EPIC Insurance Brokers and Consultants based in the Northeast. She currently serves as the Emerging Risk and Technical Lead for Executive Risk and Cyber. She can be reached at [email protected].

We’ve all seen the headlines: The Delta variant is steadily climbing, with hospitalizations rising in most states.

The governor of California and the mayor of New York City have notified state employees that they must either get vaccinated or receive weekly testing, and many hospital systems and private employers are requiring vaccinations.

This July, President Biden required that all federal workers be vaccinated or face consequences.

Meanwhile, many Americans just want to move forward. Are employer-mandated vaccinations one way of doing so?

The Impact of a Mandate 

Employers have been grappling with many issues related to the coronavirus, including safety and cleaning protocols, masking and now vaccination mandates.

Across the United States, lawsuits have been filed as mandates become more prevalent, the basis of which claim that vaccines are experimental in nature and lack full Food & Drug Administration (FDA) approval.

At present, an estimated one-third of unvaccinated Americans are waiting for FDA approval before they feel safe getting a vaccine.

Rulings in existing cases have stated the vaccine can be mandated due to the FDA’s emergency approval. The normal approval time is over six months, which in this case is expected by year’s end.

Mandatory vaccinations by employers are steadily rising in the meantime and are anticipated to continue to increase once the vaccines receive full FDA approval.

The recent situation at Houston Methodist, whereby 153 employees were fired for refusing the vaccine, showed that the hospital broke no laws. The employees sued in Bridges v. Houston Methodist Hospital but were unsuccessful based on the argument that vaccines are experimental and dangerous. This could mark a legal precedent as the waters continue to be tested.

The next test may come in New York City, where the union representing 150,000 workers is insisting on a bargaining agreement or threatening legal action. The mayor has stated workers will be sent home without pay if they do not comply.

As an employer, what should you consider when deciding if mandatory vaccinations are best for your organization?

Legally speaking, this is new territory.

The Equal Employment Opportunity Commission (EEOC) states that employers may create a mandate provided they allow reasonable accommodation for disabilities and religious beliefs. Laws vary from state to state, so it is essential to research and follow state laws.

If you’re going to set a mandate, it needs to be done right and rolled out appropriately. As noted by a law professor specializing in vaccine policies, “Employers generally have a wide scope” to make workplace rules … “it’s their business.”

Other Areas of Concern

What else should you consider? Litigation.

If, as an employer, you mandate vaccinations, there will most likely be lawsuits that lead to defense costs. Appearing as claims on loss runs, this will impact overall insurance premiums.

At present, these types of suits have not been tested, but some employers may consider this possibility a deterrent.

In terms of insurance market impacts, the possibility of future legal action could perpetuate the hard market and may impede the ability of the employment practice liability (EPL) market from getting back to normal.

At this point, underwriters are still underwriting this risk, albeit starting to apply upward adjustments to premiums. There could be a time in the future when exclusions pop up.

The bottom line for organizations and risk managers? Make sure your EPL insurance is in order. It is also important to watch ongoing and future litigation to see what may or may not be covered.

And finally, it’s important to stay abreast of individual state’s legislation and consult with your in-house counsel on appropriate actions.

This is a carefully watch-and-wait situation that is evolving daily. &

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