Author: Natalie Douglass
As employers contemplate a return to the workplace, they are confronted with many decisions regarding COVID-19 vaccination policies. A recent survey suggested that nearly 90% of US companies plan to either require or encourage vaccination.1 Another study suggested that a majority of companies will encourage instead of mandating vaccination.2 The purpose of this article is to explore the exposure, from Equal Employment Opportunity Commission ("EEOC") guidance to legislation, what current litigation looks like, and how Employment Practices Liability ("EPL") policies may or may not respond.
The EEOC originally issued guidance on December 16, 2020 and then additional updates in May 2021 regarding vaccinations in light of the CDC's announcements on masking for the fully vaccinated. Specifically, the guidance stated that, "federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws, not in EEOC's jurisdiction, may place additional restrictions on employers."3
With that threshold issue addressed, the EEOC provided additional guidance relating to reasonable accommodation for those with disabilities that are unable to receive a vaccination, as well as Title VII considerations relating to religious discrimination.
State Law Considerations
As the EEOC's guidance provided, other laws may be implicated in employers' vaccination policy decisions. For example, Montana recently passed a bill that makes vaccination status a protected class under the state's anti-discrimination laws. The law prohibits employers from requiring employees to disclose vaccination status or possess a "vaccination passport."4 It also notably prevents employers from implementing a vaccination policy requiring vaccination while under the FDA's Emergency Use Authorization.
Many other states have introduced bills on the subject and are in various stages of proposed legislation.5 It is highly recommended to consult with outside counsel as to how applicable state law impacts your vaccination policy.
Lawsuits relating to employer vaccination policies have been filed in multiple states (California, New Mexico, Texas, North Carolina, and New York). The crux of the allegations in the complaints filed to date are that their employers' vaccination requirements are inappropriate given the FDA approvals are under Emergency Use Authorization ("EUA"). Specifically, plaintiffs have cited the EUA statute providing that recipients have the right to refuse vaccinations. In response, employers have argued that the plaintiffs have failed to fully cite the statute, which goes on to explain that recipients should also be informed of the consequences of refusing vaccination, notably the status of their at will employment.6 At least one court agreed with the employer, finding that the FDA statute does not apply to private employers and"[plaintiffs] can freely choose to accept or refuse a COVID-19 vaccine; however, if [they] refuse, [they] will simply need to work somewhere else."7 It is unclear how other jurisdictions will view similar pending cases.
How might EPL policies respond?
It remains to be seen how EPL policies might respond to challenges to employers' vaccination policies, but an important distinction for purposes of coverage may be whether the claims relate to the legality of the vaccination policy or the enforcement thereof.
In the aforementioned case, in addition to pleading violation of the FDA statute, the plaintiffs filed a temporary restraining order, asking the court to prohibit enforcement of the policy that would have led to employee termination (the court denied the request).
EPL policies generally cover claims alleging certain enumerated wrongful acts, such as harassment, discrimination, retaliation, wrongful termination, etc. In this case, the plaintiffs aren't yet alleging wrongful termination because they had not, in fact, been terminated. Rather, they are challenging the legality of the policies in order to prevent enforcement. This nuance might be a hurdle to coverage under EPL policies in the event that insurers take the position that no employment wrongful act as defined under the EPL policy has been alleged.
Over time, however, we may begin to see claims arising out of the enforcement of these policies. As with any claim, coverage is determined by evaluating the specific facts as alleged in the complaint along with the policy language. That said, EPL policies generally cover claims for wrongful termination, discipline, retaliation and discrimination - all of which appear to be coverage-triggering allegations arising out of the enforcement of vaccine mandates. Particular attention should be paid to policy exclusions, however. Some insurers have attempted to introduce COVID-19 or infectious disease exclusions. While these exclusions are relatively rare, they may bar coverage for anything arising out of, attributable to, or based upon COVID-19 or infectious disease and could preclude coverage for these matters.
Obviously, this is new territory for everyone. It will be important to continue monitoring legislation, litigation, and EEOC guidance and it will be critical to consult with outside counsel before implementing any vaccine policy in your workplace.