Mandate Holders

From The Practice — September/October 2021

Highlighting key stories about the profession you may have missed

General counsel In-house departments Politics

It was clear as soon as President Biden unveiled the latest executive orders requiring vaccines for federal employees and contractors and for private businesses with 100+ employees that such orders would be challenged in courts. Whether or not to institute a vaccine mandate is not simply a matter of ethics or public health—it has real legal implications. (For more on the role lawyers have played in the vaccines’ rollout, see “Lawyers at Warp Speed.”) Liability and compliance concerns abound: organizations must consider how to provide safe, healthy environments for students and employees—Biden’s executive orders are, after all, reportedly running through the Occupational Safety and Health Administration—while also considering how individuals might use workers’ compensation for vaccine side effects and how others may opt out of the requirement entirely using religious or other exemptions. Companies may opt out of mandates if they provide frequent testing, but who, the Wall Street Journal asked labor and employment attorneys, will pay for that? Robin Shea, an employment lawyer at Constangy, Brooks, Smith & Prophete LLP, was quoted in the same piece in the Journal asking, “Do we want to even bother with the weekly testing option, knowing how much trouble that’s going to be and how many issues that’s going to open with expense, and whether insurance is going to cover it?” As the COVID-19 pandemic continues to be both the most acute and prolonged crisis facing the world (and lawyers), in-house counsel are vital to decision-making and employment attorneys are on notice.

For instance, in August, NFL general counsel Larry Ferazani spoke at a press conference concerning negotiations with the official Players’ Union about a vaccine mandate. While the NFL has not yet instituted a mandate, they report that 93 percent of players are vaccinated. Despite the lack of an official mandate, controversy remains. In late August, when discussing cutting a player, Jacksonville Jaguars Coach Urban Meyer intoned that the player was cut due to his vaccine status. After the union expressed concerns, the team released a statement reading, in part, “Availability is one of the many factors taken into account when making roster decisions,” the statement read. “We have vaccinated and unvaccinated payers on our roster, and no player was released because of their vaccination status.” Similarly to the NFL, after negotiations with their players’ union, the NBA will not require its players to be vaccinated, but the NBA referees’ union will require it.

Airlines have taken a different route to vaccine compliance. In August, Delta Airlines stated that employees who refused the vaccine would incur a $200 a month surcharge, a cost, the airline stated, that would amount to what the company and its health insurance incurs when unvaccinated employees are hospitalized. United Airlines allowed religious exemptions but stated that those who made use of them would be placed on temporary leave—a precaution the airline said was necessary while it assessed how to make work safe for all those involved.

Irrespective of the exact policies—and there are many—and industries, general counsel are at the center of discussion making as workplaces weigh vaccination mandates and workplace COVID-related safety precautions.

Don Riddick, the chief legal officer for Featurespace, was quoted in Corporate Counsel saying, “To a certain extent, general counsel must also now act as a chief medical officer in interpreting the guidance of various regulatory and advisory bodies, which definitely goes beyond our normal remit or training.” (For more on this issue, see “Playing Through the Pandemic.”)

Law firms too have made sure to provide solid information on the legality of vaccination mandates and on other issues clients need to consider when instituting new COVID protocols, especially with respect to their possible exposure to disparate impact claims. Perkins Coie, Morrison Foerster, and others provide FAQs and resource guides on their websites.