Legal Implications of COVID Protocols/Vaccines/Testing

By DARRELL O’NEAL AND ADRIANE O’NEAL

Screeching to a grinding halt, life was jarred from our hands and became a new world of no forward movement, but into timeless years of standing still beginning in March of 2020. With the closing of schools, buses not running, the grocery store locked down for a time ,and the job we may not cherish, but needed to fill the bellies of our families closed, life became locked down and halted with a quickness of inhaling a fresh breath of air.

As we depend on the freshness of air to sustain our lives, there was an invasion and subsequent takeover of what we now know as COVID-19 (Coronavirus). According to a 2019 Mayo Clinic article, 1“new coronavirus was identified as the cause of a disease outbreak that originated in China. The virus is now known as the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The disease it causes is called coronavirus disease 2019 (COVID 19).” This does not cover the new variants, Alpha, Delta, and Omicron that cropped up in the world and began to wreak havoc in other ways to our bodies, thus causing more heartache and legal issues with jobs, families, healthcare, and hospital stays and policies.2 According to the New York Times and Our World in Data’s reported statistics, to date, there are over 93 million known cases of COVID 19 and well over 1 million deaths in the United States alone. Throughout the world there were 594 million known cases and over 6.45 million deaths reported.”

Although the CDC initially laid guidelines for the country to follow, each state mandated their own policies and guidelines for companies to follow for the well-being of their employees. There are various legal aspects to what many companies and businesses, large and small, have tried to put in place for the protection of the company (employer), the employees and the public. Masks were mandated, shots and boosters were mandated. Stay at home was the biggest mandate put in place and only essential personnel were allowed outside the home. Some states put curfews in place to keep order and confusion at bay. Isolation of families and co-workers became the norm for months to try and curb the spread of the virus. Nursing homes, hospitals and prisons became overwhelmed with COVID-19 infected people on the rise.

But of all these mandates, what were the actual protocols to ensure employers and employees were safe? What were the legalities to ensure the public could resume normal living without unjust consequences? Did the governments, local, state, and federal apply mandates that were legally sound and binding to ensure that testing was correct, vaccines were safe, and that companies could legally mandate these instruments to have a safer and more productive workplace?

The Centers for Disease Control and Prevention (CDC), umbrellaed under the Department of Health and Human Services, and headquartered in Atlanta, Georgia, is a United States federal agency established in July of 1946. The CDC began a hard task of trying to get ahead of this virus. On their Workplace Vaccination Program page, the agency states, “Employers should share clear, complete, and accurate messages, promote confidence in the decision to get vaccinated, and engage employees in plans to address potential barriers to vaccination.”3 These guidelines would help the employer implement employee vaccination at the job and in their local communities.

It further states that, “by providing information about COVID-19 vaccination and establishing policies and equitable practices, employers can help increase vaccine uptake among workers.”4 There were exemptions to being vaccinated that one could state for not accepting the vaccination: due to health reasons known as the medical exemption, and also because of one’s strong religious beliefs, or the religious exemption. Though many would choose to not be vaccinated, these policies and guidelines would afford a safer and more productive workplace for both employers and employees. If employees chose not to be vaccinated, they could be required to be tested weekly upon returning to work. The employer could inquire about the employee’s vaccination status without violating the Health Insurance Portability and Accountability Act (HIPAA). If a company was unsure whether their policies and guidelines were HIPAA compliant, they needed to consult a legal professional to ensure they did not violate HIPAA.

Legalities cropped up for many employers who wanted to mandate that all employees be vaccinated against COVID-19. Though some employees were promptly vaccinated, others stood their ground as it being their right to not have to take a vaccination that they were unsure of, or just did not want to have another forced vaccination.

A recent Harvard Business Law article asked, What Are Companies’ Legal Obligations Around Coronavirus?” and went on to outline 8 steps a company should take to ensure their companies and employees are safe. The article opined5 “Having inadequate communicableillness policies and response plans related to coronavirus could expose companies to a laundry list of HR related legal concerns including workers’ compensation, invasion of privacy, discrimination, unfair labor practice, and negligence lawsuits.” By following the eight steps listed in the article, companies could stay well informed, communicate proper hygiene, and prevent passing the virus throughout the workplace. The article also noted that keeping abreast of policies and guidelines, as well as planning ahead to stay compliant is an important part of an organizations’ resilience program.”

There are numerous policies and laws that affect employers and employees. Unfortunately, there are too many laws to address in this article. The real question for employers is what law will provide the most significant concern. Tennessee is a right to work state, which means an employer can terminate an employee for any reason or no reason as long as the reason is nondiscriminatory. Does refusal to get vaccinated or mandating a vaccination run afoul of discrimination laws or Tennessee right to work laws? Specifically, (1) are there reasonable accommodations to any vaccination policy; and (2) do reasonable accommodations for COVID-19 pose an undue hardship on employers? The answer to these questions is a resounding yes.

42 U.S.C. § 2000 covers discrimination laws in the employment arena. Title VII of the Act, codified as Subchapter VI of Chapter 21 of title 42 of the United States Code, prohibits discrimination by covered employers on the basis of race, color, religion, sex, or national origin (see 42 U.S.C. § 2000e-2).6 Title VII applies to and covers an employer “who has fifteen (15) or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year” as defined in 42 U.S.C. §2000e(b).7 Title VII also prohibits discrimination against an individual because of their association with another individual of a particular race, color, religion, sex, or national origin, such as by an interracial marriage.8 Title VII has also been supplemented with legislation prohibiting pregnancy, age, and disability discrimination.9 Discrimination laws have been interpreted for years, but there are very few cases addressing discrimination as it relates to the COVID-19 pandemic.

The United States Supreme Court, in Biden v. Missouri, 10 established who can be mandated by the Federal government to obtain a vaccine. At issue in this case was whether President Biden’s administration could mandate that all hospital and healthcare workers be vaccinated.11 The Supreme Court ruled that the President can mandate vaccination requirements for organizations that receive federal funds, but not to everyone. 12 Unfortunately, Biden v. Missouri failed to address whether nonfederal employers can mandate vaccinations.

For instance, the First Circuit, in Emps. v. Mass Gen. Brigham., ruled that mandatory COVID-19 vaccination policies were acceptable.13 In Emps, the hospital implemented a mandatory vaccination policy.14 A number of employees requested religious and medical exemptions.15 The hospital denied the medical exemption requests because they were not consistent with the established potential medical contraindications for the COVID-19 vaccine as established by the CDC.16 The employer also denied the religious exemption request because they did not meet the hospital requirements.17 The employees sued.18 The trial court and appellate court ruled in favor of the hospital stating that the mask mandate alone was not enough to protect patients, and the hospital’s vaccination mandate was reasonable.

We still need to take steps for safety in the workplace to curb the spread of the coronavirus and the variants that are emerging through continued awareness and implementing a plan to protect our spaces of habitation and work. In an article archived on the Fisher Phillips website, it highlights the fact of not getting too lax in believing that workplace lawsuits are still viable. The article, 19“Taking your Foot Off the Gas Too Early Could Lead to Covid-19 Workplace Safety Lawsuits,” states that, “relaxing the workplace safety measures too early could invite litigation from employees in a stressed economy, or a knock on the door from the Occupational Safety and Health Administration (OSHA).” Though the article was written in April of 2021, it continues to be relevant today, especially with the relaxed attitudes of many people in the workplace arena. Today we have a plethora of people who will not consider the safety of others because they either believe the pandemic is over, they believe it to have been a hoax all along, or they believe forced mandates is a trample on their right to choose whether to get sick without the slightest regard to possibly making others sick.

OSHA developed a 20“COVID 19 Plan Template, as a guide for employers to follow to help with their plan to eradicate and or stall the spread of the virus within the workplace.” The plan covers every aspect of the workplace to an employee working alone, or with various others, and spells out various options to keep the workplace safe and virus free. Implementing this plan requires the employer to set standards that will keep safety a priority and give the employees an ability to work free of a threat of contracting COVID-19 within the work environment.21 A Coronavirus Workplace Policy, located at https://cfabilene.org, was developed to give members of the workplace’s staff an opportunity to review workplace guidelines and policies. The template sets the most important actions to take now, enhanced workplace policies, including additional policy changes. Based on the limited sample size of litigation provided, employers can require mandates, but it appears they must provide consistent policies for exemptions and accommodations.

According to a HuschBlackwell Article, updated March 18, 2021 titled, 50 State Update on COVID-19 Business Liability Protections, 22“Most state laws do not shield liability where the injury was caused by wanton, reckless, willful or intentional misconduct.” Their article lists each state individually and gives specific information of each state’s liability protections. Being an employer in Tennessee, the “Tennessee Governor Lee signed the Tennessee COVID-19 Recovery Act, prohibiting claims “against any person for loss, damage, injury, or death arising from COVID-19 unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful

1 https://www.mayoclinic.org

2 New York Times and Our World in Data

3 https://www.cdc.gov (Workplace Vaccination Program)

4 Id.

5 https://hbr.org

6 "Civil Rights Act of 1964 – CRA – Title VII – Equal Employment Opportunities – 42 US Code Chapter 21.

7 Id.

8 Parr v. Woodmen of the World Life Insurance Company, 791 F.2d 888 (11th Cir. 1986).

9 Pregnancy Discrimination Act of 1978, Age Discrimination in Employment Act, Americans with Disabilities Act of 1990).

10 595 U. S. ____ (2022) misconduct.” Id. This law in Tennessee appears to be geared toward protecting the employer, simply because clear and convincing evidence is such a high burden in our legal jurisprudence.

11 Id.

With COVID-19 still lurking and appearing to be on the decline, employers should continue to maintain protocols, guidelines, and policies to protect their employees and the public until clear and concise information is released that COVID-19 and its variants have either been contained or eradicated. Legal issues will continue to be a concern, but consistency and common sense should provide some legal protection. 

Darrell O’Neal is the owner of The Law Office of Darrell J. O’Neal and practices in the area of labor and employment, personal injury, social security disability, and wills/probate. A member of the Labor and Employment Law Section of the Memphis Bar Association, he currently serves as the General Counsel for the Memphis Shelby County Education Association.

Adriane P. O’Neal is the office manager at the Law Office of Darrell J. O’Neal where she is responsible for hiring new employees and overseeing training. She holds a Bachelor’s Degree in Public School Music and a Master’s Degree in Curriculum and Instruction, and is a former educator and published author.

12 Id.

13 32 F.4th 82 (1st Cir. 2022).

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 https://www.fisherphillips.com/news-insights/covid19-workplacesafety-lawsuits.html

20 https:www.osha.gov (Google-COVID-19-Templace-OSHA)

21 https://cfabilene.org/uploads/Coronavirus-Workplace-PoliciesTEMPLATE.pdf

22 https://www.huschblackwell.com/newsandinsights/50-state-updateon-covid-19-business-liability-protections