Government-ordered vaccine mandates for employees have faced legal challenges and setbacks in the courts, most dramatically when the U.S. Supreme Court last month blocked President Joe Biden’s vaccine-or-test mandate for large employers.
The back-and-forth on mandates has only complicated an issue that has bedeviled and befuddled employers since COVID-19 vaccines were made available early last year.
Maryland employment lawyers say vaccine mandates are fraught with pitfalls and should be implemented carefully.
“People ask if the (Supreme Court) decision was a game changer, but it was not,” said Joyce Smithey, an Annapolis employment lawyer with the Smithey Law Group. The decision, she said, “puts employers where they have been throughout the whole pandemic — they can voluntarily mandate as long as they give accommodations for people who need it.”
Doing so, she added, “can be very tricky.”
The trickiest part, according to Smithey and other attorneys, is dealing with exemptions for medical or religious reasons. Requests for religious exemptions pose particular challenges for companies. Smithey said that claims citing religious beliefs are broadly interpreted and that those who seek such an exemption don’t have to be part of an organized religion.
Smithey, who has worked in employment law for more than 20 years, said she has never received as many calls as she has recently – some 100 a week. Most are from employees who have not been granted a religious exemption from a vaccine mandate, she said.
Smithey suggested that employers try to negotiate an alternative plan with employees who don’t want the vaccine; employees could agree to work remotely, wear masks or be tested frequently for COVID.
“I’m hearing from a lot of people where accommodations were given and people kept their jobs,” she said.
Employers know they have an obligation to keep employees safe and are taking “a hard look at how to do that,” said Lindsey A. White, an employment law specialist at Shawe Rosenthal in Baltimore.
White said some of her firm’s clients have implemented a vaccine mandate on their own: “They were in the course of doing so, and some decided it made sense and they stuck with it.”
Others decided against imposing a mandate, White said, figuring that “it didn’t make sense for their business unless it’s required.”
White said that even if employers don’t require COVID shots, they can encourage employees to be vaccinated by providing perks like gift cards and time off to get the vaccine and to recover from any side effects.
John Henderson, an administrative law judge for the U.S. Department of Justice and the chairman of the Labor & Employment Law Section of the Maryland State Bar Association, recommended that employers consult an employment lawyer before implementing a vaccine mandate. He also advised them to consider how to handle requests for religious exemptions and to make sure everyone in the organization — especially those in human resources — understands the situation.
“One of the ways to avoid litigation is to be clear from the outset (about) what is expected,” Henderson said.
Business vaccine mandates are of particular concern in Maryland, as many Marylanders work in health care or for federal government contractors, pointed out Melissa Jones, head of the labor and employment group at Tydings & Rosenberg.
Health care workers at facilities receiving federal money are required to be vaccinated. But federal employees, including people who work for federal contractors, are not covered by a mandate, which was stayed pending appeal.
Jones said the federal contractors she works with either have instituted a vaccine mandate or are planning to do so.
“We tell employers to talk openly about the potential consequences of a mandate and whether they’re prepared to deal with the consequences,” she said.
Perhaps the biggest question to consider, Jones said, is “what are you going to do when your all-star employee says, ‘I don’t want to get vaccinated,’ and it’s just a personal belief. You’re faced with having to terminate your best employee.”
Kerianne P. Kemmerzell, an employment lawyer at Tydings & Rosenberg, said companies would be wise to keep an eye on the legal battle over the Biden vaccine requirement for large employers, as well as on the also-stalled mandate for federal contractors.
In addition, Kemmerzell said employers need to be aware of local vaccine mandates.
“You have to make sure you comply with local and state law,” she said.