Most of the news around vaccine mandates today focuses on Federal Contractors and employers with more than 100 employees who will be subject to the OSHA Emergency Temporary Standard when it is released. Some types of employers such as healthcare and restaurants are subject to other specific standards, but those usually have a testing option. Most companies in the New Orleans area are not covered by any including many law firms. The question I have been being asked recently is what should small employers with no current legal obligation to mandate vaccines do.
It has become increasingly clear through decisions in several lawsuits that under federal law private employers have the right to mandate that employees be vaccinated against COVID. This right is limited only by an employer’s obligation, if covered by Title VII and the ADA by having 15 or more employees, to accommodate individuals with disabilities and those who have a sincere religious belief that conflict with the mandate. If an employee refuses to be vaccinated and is not entitled to an accommodation under one of these laws, the employer may discharge the employee. Recently, some states, most notably Texas, have enacted measures designed to prohibit employers from mandating vaccines. Louisiana has not done so and there has been no suggestion any such move is planned.
Deciding whether to mandate the COVID vaccine is business specific. Employers are generally asking the following questions when assessing the answer.
In my experience, the majority of small businesses are choosing not to mandate vaccines. The primary reason is the belief that more employees will resign because of a mandate than will because of unvaccinated employees in the workplace. Businesses who have chosen to mandate the vaccine cite several different reasons including making customers feel safer, the negative impact of an outbreak on operations, and even the costs of health care for serious cases.
Regardless of which path a company chooses, it is important to remember that CDC guidelines remain in place that apply to business without regard to a workforce’s vaccination status. Companies who want the protection of Louisiana laws limiting liability arising out of COVID cases need to continue to comply with that guidance or the analogous Louisiana Department of Health Guidance. Interestingly, in spite of the lifting of state mask mandates, OSHA is currently holding businesses to the CDC guidelines that require masking indoors in areas of substantial or high transmission even for vaccinated employees. CDC Guidance requires unvaccinated employees wear masks regardless of the level of community transmission.
Edward F. Harold
Fisher & Phillips, LLP
Labor and Employment Law Committee Chair
Written on Behalf of the Labor and Employment Law Committee