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Can Employers Require Workers to be Vaccinated Against COVID-19 As Workplaces Reopen?

Posted June 28, 2021 by Jamie Kent Hamelburg in Articles & Publications, BizLaw 101 Blog

Now that businesses are reopening and employees are returning to the jobsite, many employers are considering adopting policies that require their staff to be vaccinated as a way to protect co-workers and customers from COVID-19. One of the questions that currently is top-of-mind is whether employers can legally require employees to be vaccinated. A recent court case out of Texas answers this question as “yes.” Because Texas employment law is similar in key respects to the laws in the District of Columbia, Maryland, and Virginia, it is likely that if the matter were litigated locally, a court in the DMV would similarly uphold a COVID-19 vaccine mandate. 

In Jennifer Bridges et. al. v. Houston Methodist Hospital et. al., the Texas court dismissed a lawsuit brought by staff at Houston Methodist Hospital challenging the hospital’s COVID-19 vaccine mandate. The judge dismissed arguments that the hospital was requiring employees to be “human guinea pigs” and instead relied on Texas employment law that characterized employment as “at will,” which means that, with very limited exceptions, employers have wide latitude in terminating employees. The court also relied on U.S. Supreme Court decisions upholding other vaccine mandates, as well as recent guidance from the U.S. Equal Employment Opportunity Commission that employers can require employees to be vaccinated against COVID-19 subject to reasonable accommodations for employees with medical disabilities or sincerely held religious beliefs that preclude immunization.   

In the Bridges case, the court rejected plaintiffs’ complaints that they were being “coerced” into getting a vaccine, stating that the employer rightfully was making a choice “to keep staff, patients, and their families safer.” According to the court, employees can freely choose to accept or refuse a COVID-19 vaccine; if they refuse, they will simply need to work somewhere else.  

No doubt there will be other lawsuits challenging the practice. However, at least for now, such challenges probably would not succeed in the DMV because local employment law, like Texas, recognizes the wide latitude of employers to terminate employees except in limited circumstances. Currently the legislatures in the DMV have not weighed in on the legality of COVID-19 mandates, although Maryland House Bill 1171, which would prohibit COVID-19 vaccine mandates, is in the early stages of consideration. There are no similar bills under active consideration in D.C. or Virginia. 

Other jurisdictions, like New Jersey, have issued guidance recognizing the rights of employers to require COVID-19 vaccinations of their employees, and the City of San Francisco recently told 37,000 public employees they must be vaccinated against COVID-19 or lose their jobs.  At the other end of the political spectrum, states like Indiana and Arkansas recently passed legislation prohibiting state agencies from requiring their employees to be vaccinated against COVID-19. 

As employers begin to adopt COVID-19 mandates, it is essential that they implement their policies in a way that complies with state law. For example, there are rules regarding granting of accommodations for employees with medical issues including pregnancy or bona fide religious objections, and requirements to keep employee-provided information confidential and separate from employment files. When communicating with employees, employers need to be certain their policies are in accordance with the law and also that they strike the right tone in explaining this new requirement. 

At Press, Dozier & Hamelburg, LLC, we are committed to helping our clients ensure the safety of their workforce and customers as they look to reopen their doors. Please call on us when preparing vaccine policies and we will work with you to navigate bringing employees back to the jobsite in as safe a way as possible. 

Jamie Kent Hamelburg is a business and commercial real estate attorney at Press, Dozier & Hamelburg. She can be contacted at (301) 913-5200 or by email at Press, Dozier & Hamelburg partners with businesses to achieve their goals, and represents families and individuals, often when they are most vulnerable. Our attorneys deliver valuable insight and counsel in the areas of business law, employment law, litigation, commercial real estate, estate planning and administration, and business succession planning. We provide all of our clients with personal service, emphasizing responsiveness, sensitivity, and respect. We are located in Bethesda and serve Maryland, Virginia and Washington, DC. 


Note: The content in this Blog is for informational purposes only and should not be acted upon without first consulting legal counsel. It is not intended to constitute legal advice.