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COVID-19 and the Law

Updated: Oct 20, 2021

Rules Governing Employers and Employees

This is one of the more popular topics I've discussed: What can my employer require of me? Here are a few "DOs", "DON'Ts" and "MAYBEs":

  • Employers cannot discriminate against applicants or employees based on race, color, religion, sex, national origin, age, disability, or genetic information.

  • Employers can require applicants to complete "tests" that are "necessary and related" to the job (i.e. fire departments can require all applicants and employees complete physical fitness assessments).

Between these two extremes, private employers enjoy a lot of deference, and some common policies include the following:

  • Employers can impose a dress code.

  • Employers can impose a policy concerning sick leave, and admission or exclusion from a physical office space.

  • Employers with a religious or cause-driven purpose can require their employees to agree to a statement of faith, code of conduct, or mission statement.

Employers must provide a safe working environment, but what does that mean? This condition is overseen by OSHA, and it's the agency President Biden claims will implement his 100-employee vaccine mandate. Many conditions are in writing, others have been litigated, but many other conditions are left to the employer. In emergent issues like COVID-19, private employers may implement rules internally. In each case, the employer argues that these mandates are necessary as part of their duty to provide a safe workplace.

Once we have a rule or mandate, we talk about "reasonable accommodations." For example, if an employer has a dress code that forbids head coverings they must make a "reasonable accommodation" for employees whose religion requires head coverings.

Individuals with disabilities enjoy federal protections through the American's with Disabilities Act (ADA). For example, if an employee working in an office setting has difficulty holding the telephone because of a disability, a reasonable accommodation may be a hands-free headset.

New parents enjoy protections under the Family and Medical Leave Act (FMLA). For example, employers cannot fire an employee because they had a new baby.

When it comes to COVID-19, we have two questions: (1) Can an employer require vaccination? and (2) If they do, must they offer a reasonable accommodation?

I cannot give you a firm answer today, but many of these issues are working their way through the courts. Regarding the first question, courts are siding with employers and allowing mandates to remain in place. On the second question, courts are upholding certain requests for an accommodation, but not all.

The Network for Public Health Law is a national initiative of the Robert Wood Johnson Foundation, and they've assembled a list of COVID-related cases. They reviewed 57 cases, and here are the highlights:

  • "Almost all" cases upheld vaccine mandates where mandates were an issue.

  • Only 4 cases granted some injunctive relief. In all of these cases, the plaintiffs made a religious freedom argument.

  • All cases asserting free speech and association or medical privacy failed.

  • 23 of these 57 cases are still unresolved.

NOTICE: As always, these thoughts are the author's, alone. This post is a response to a general topic and is not legal advice for anyone's individual situation. All matters are unique and if you have a legal question I advise you seek out your own independent legal advice.

Copyright © 2021 Pilcher Law Firm, Prof. L.L.C.

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