HOUSTON – In an interview with Third Thursday, A. Kevin Troutman (a partner at Fisher Phillips law firm with 25 locations in the United States) reiterated his opinion that employers could indeed require workers to be vaccinated against COVID-19. However, the proverbial devil is in the details, and there are caveats.
Troutman explained that if employers do mandate the vaccine, they might also experience controversy in the form of workers being upset, distracted, and even quitting. To lessen these possible impacts, he recommends employers figure out the best ways to encourage workers to get vaccinated and to increase participation by making it as easy as possible for them to do so. Third Thursday sat down with Troutman to explore the exceptions to the rule
Third Thursday: Has your opinion that contractors can mandate vaccinations changed in the last month or so?
A. Kevin Troutman, partner at Fisher Phillips LLP, co-chair of the National Health Care Practice Group, and chair of the firm’s Vaccine Subcommittee Work Group: We haven’t changed our mind, but I would emphasize the details that go along with that general statement. Yes, contractors can legally compel their employees to get vaccinated, but they also have to allow for exemptions or accommodations based on either sincerely held religious beliefs, or on medical circumstances—so it’s not an absolute requirement. Employers still have to consider possible accommodations. Some state legislators have either introduced, or said they will introduce laws that would keep employers from mandating vaccines in the workplace—so that would be a state law issue. So far, I haven’t seen where any of those laws have actually passed and taken affect. But that’s something employers should continue to monitor.
Third Thursday: Among colleagues who disagree with you, what is their rationale?
Troutman: I haven’t heard anyone articulate that disagreement. There are people who just don’t agree with it philosophically, or as a matter of policy, but from a legal standpoint I haven’t heard anyone dispute the conclusion that the vaccine can be mandated. Is that the right decision? That’s another question.
Third Thursday: How would an employee vaccine refusal play out?
Troutman: The most likely way would be that an employee would go to the EEOC and make a complaint. They could also go to a state court judge or a district judge where they live if there’s a law on the books that said, or somebody argues says that you can’t compel vaccines. But so far I haven’t seen anything other than out in Oregon. In Oregon, there are some particulars where employers are not absolutely given the right to mandate vaccines unless they are otherwise required by law.
Employees would probably go to the EEOC if they are trying to make an argument based on federal law, or they could go to state court, but in most states, they’d still have to go to the state equivalent of the EEOC. Every state has some sort of a similar type of an enforcement agency that investigates and acts on allegations related to violations. Here we’re talking about violations that would constitute discrimination or violation of somebody’s rights because of a disability, or because of religious beliefs. So it could play out that way.
Third Thursday: What if several employees refused in a coordinated effort?
Troutman: A group of employees could just decide that they are not going to get vaccinated and try to create a work stoppage, which creates other issues under federal law. I haven’t seen that happen. I’ve seen discussion where union reps seem to believe that vaccination is a good idea. Companies need to communicate with and bargain with unions that are in place when they’re considering implementing a change like this—such as requiring a vaccine that wasn’t previously required. From what I’ve seen so far, unions seem to be pretty receptive to the idea of having employees vaccinated when it becomes available.
Third Thursday: Is it accurate that similar mandates with flu vaccines have not generated controversy?
Troutman: From a legal point of view, it’s pretty clear that employers can require a flu vaccine, and I think whether it’s a flu vaccine or a Covid vaccine, the employer has to be prepared to explain how that requirement is related to the employee’s duties. As those things have been challenged, courts have pretty consistently found that employers can require a flu vaccine.
There still has been drama. There are people who just don’t believe in vaccines. There may be controversy, emotion, a lot of unhappiness, but when it comes down to enforcing the requirement, employers can enforce it. Employees must ask for an accommodation. They can’t just say no. They’ve got to say “I can’t take the vaccine because of…a medical reason, allergy or condition, or sincerely held religious belief.” They have to explain their reason.
Third Thursday: How has life been during the pandemic, and do you expect things to go back to the way they were?
Troutman: We’ve all learned to adapt, and when we’re no longer required to distance or avoid gatherings, I think we’ll still see a lot more use of Zoom type technology and remote connections and conferences. I think we’ll see companies and probably law firms that have discovered there are other ways to do business than what they did pre-pandemic. Some of the things law firms have learned during the pandemic will continue even when it’s no longer required. However, we will see a lot more face-to-face interaction. I think in-person interaction is still very important, and very effective. People like it. That said, I don’t think we’ll see as much as we did prior to the pandemic.
Third Thursday: Do you believe there is pent-up demand for conferences?
Troutman: I think people like to get together and see each other and sit down and talk, and maybe share a coffee or a beer in between formal sessions. I think we are going to see a lot of those things increasing. I don’t know that there will be an explosion in demand, but I think we will definitely see an increase in demand. We’ll see a lot more in-person gatherings. I think they are effective and people like them. They’re not going to go away.
Third Thursday: What’s your level of optimism for the future?
Troutman: I think it’s going to take some time for the vaccine to get out there and for herd immunity to be high enough. If we’ve learned anything over the past year, it’s that this is a long-term process. It’s not going to resolve quite as quickly as we would have hoped. It appears that at least things are going in the right direction. I believe we will see some loosening of the reins in the coming year, but it’s not going to be automatic.
Even when an employee gets both doses of the vaccine, that doesn’t mean they’ll be free to discard their mask and forget about social distancing for at least a while. It sounds like the CDC is still recommending that people wear a mask and distance even after they are vaccinated. We will reach a point where that will start to go away, but it’s not entirely clear that a person who has been vaccinated couldn’t still transmit the virus to someone else. They may be vaccinated and not get sick, but they still may be able to transmit, thus the importance of masks and distancing even after you’ve been vaccinated.