Returning to the Workplace: The New Politics of Vaccination

By: Robert Williams, Senior Political Director

In the Washington region, the early indicators of normalcy are unmistakable: fewer covered faces outdoors, busier bars and restaurants, and a noticeable uptick in commuters on Metro trains. Just last week, the Centers for Disease Control and Prevention CDC) declared that fully vaccinated people can, with some exceptions, resume normal activities without wearing a mask, prompting a wave of states to move up their own timelines. In Virginia, Speaker Eileen Filler-Corn (D) announced the return of in-person sessions at the state capitol. In D.C., local government workers have already begun returning to the office, and all District employees are expected back by July 12.

Across the country, workers and employers are negotiating when and how to return to an in-person work environment. At the same time, the increasingly fraught politics of vaccination has provoked a flurry of activity from state lawmakers. To successfully navigate the “new normal,” employers will need to closely monitor their state and local governments for regulatory changes and updated guidance.

Federal Guidance & State Responses

According to guidance from the U.S. Equal Employment Opportunity Commission (EEOC), employers can ask their employees whether they have been vaccinated and even require proof of vaccination for employees returning to the workplace. In accordance with the Title VII of the Civil Rights Act, employers must provide reasonable accommodation for employees who cannot comply with a mandatory vaccination policy because of a disability or sincerely held religious practice or belief.

Despite EEOC guidance, the enforceability of COVID-19 vaccine mandates remains uncertain. First, it’s unclear if employers can legally require employees to take a vaccine that is being distributed under the Food and Drug Administration's (FDA's) Emergency Use Authorization (EUA), which requires that recipients be informed “of the option to accept or refuse administration of the product.” All three approved COVID-19 vaccines are being distributed under EUAs. Although there is a consensus in the legal community that private sector employers can mandate vaccinations, no court has interpreted the 9/11-era statute that gave the FDA the authority to grant emergency use authorizations.

States are also wading into the vaccination debate. The California Department of Fair Employment and Housing (DFEH) released updated guidance explaining that employers may require employees to receive an FDA-approved vaccine so long as the employer does not discriminate against or harass an employee based on a protected characteristic, provides reasonable accommodation when required by law, and does not retaliate against an employee for requesting reasonable accommodation.

So far this year, six states—Arkansas, Florida, Indiana, Kentucky, Montana, and Utah—have enacted legislation limiting vaccine mandates or codifying exemptions, with Alabama, Iowa and Tennessee likely to follow soon. Legislators in five other states— Arizona, Louisiana, Michigan, South Carolina, and Wisconsin—are considering similar legislation that has passed one chamber. Most legislation is aimed at preventing governmental entities from mandating vaccinations or requiring proof of vaccination; however, some go further, covering employment practices and public accommodations.