Since the advent of COVID-19 pandemic, employers have been faced with rapidly changing rules and regulations, at the federal, state and local level. We wanted to make readers aware that on January 26, 2022, OSHA withdrew its emergency temporary standard to require non-medical facilities with more than 100 employees to implement vaccine or testing requirements. The requirement would have required those facilities to either mandate vaccination against the SARS-CoV-2 virus or to test workers weekly.

Without citing all of the dissenting opinions on its decision, OSHA withdrew the temporary standard after being blocked to implement it by Supreme Court ruling. The mandate was in effect for only three days before being struck down by the court. In addition, OSHA (per CNBC), has asked the U.S. Court of Appeals for the 6th Circuit to dismiss all cases related to the mandate. This indicates that OSHA will not be pursuing further legal action related to the mandates at this time.

Now, employers who were preparing to implement the vaccine or test requirements are wondering what steps they can take to protect their workforce, even as President Joe Biden is urging firms to implement their own mandates. President Biden has been quoted as saying "… I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities."

So the question is, can employers mandate the vaccination? Yes, they can.

Even though the Supreme Court decided that OSHA does not have the authority to implement the requirements, precedents of case law have established that it is legal for private employers mandate vaccinations, which many have done–even to the extent of some having fired non-vaccinated employees. The Supreme Court reasoning had to do with the fact that the virus was worldwide and exposure wasn't strictly related to employment.

Firing or disciplining workers for vaccine refusal can however increase the employer's risk for employment practices liability. Backed by the Supreme Court's decision, workers may sue their employer for discrimination or wrongful termination over refusing to get vaccinated.

Private employers are now faced with a conundrum over whether to maintain their legal right to require the vaccination, or to roll back their previously initiated vaccine mandate. If the employer rolls back a previously issued mandate, it could open them up to additional EPL exposure if they had fired any workers over the vaccine mandate.

Any vaccination policy should ensure it allows for medical and religious exemptions. Also, the policy should include a strategy for how the employer will keep employees' health data private and secure.

State and local requirements will prevail, so it is of vital importance to keep abreast of these requirements. For example, New York requires all employers to mandate vaccination, while Texas, Georgia and Florida (and perhaps others), have banned the mandates. This makes it especially difficult for employers with exposures in multiple states that may have differing rules for compliance. Further complicating the issue, while work-from-home policies can help keep the workforce safe and reduce liability; on the other hand employers who roll back their vaccine mandates could face EPL exposure from workers who do not wish to return to an office with unvaccinated co-workers. This could be a large exposure if employees feel they would be returning to an unsafe work environment, and so they simply stop going in to work. Then the company may fire them, but may be subject to a retaliation exposure.

With continual changing of laws and regulations, employers will need to stay abreast of their requirements, perhaps consulting with their EPL insurance carrier and/or an EPL attorney to understand their legal risks and to know what steps the carrier is expecting their insureds to do to protect from suit liabilities.