In very few legal scenarios is there a clear cut, black and white answer, and this is especially true when it comes to workplace policy decisions that directly affect employees. When you add in the variable of an employee’s health and medical history, things can become complicated very quickly. Mix in our current hyper-partisan political climate, and a simple “yes you can” or “no you can’t” answer becomes nearly impossible. However, there are ways to make the decision-making process simpler.
But first, we need to start with a question that is regularly posed by employers when deciding whether to make a controversial (or at least novel) workplace decision: “Can my business be sued for doing ‘X’?” (For our purposes, “X” means implementing a COVID-19 vaccine mandate or making an adverse or impactful employment decision in furtherance of that policy.) And the response is usually the same: “Yes, of course your business can be sued.” The more meaningful question is if, under the circumstances, such a suit would have merit or carry the risk of significant damages. That is always a more substantive conversation an employer should have with legal counsel because, while anybody can file a bogus or harassing lawsuit, what should really concern employers is whether if, in the event a lawsuit is brought, that suit has legs.
So, then we reach the topic of the day: Can private employers in Ohio mandate that their employees get the COVID-19 vaccine? The answer is clearly yes. (For now, at least: the Ohio legislature is currently debating bills which may change that answer.) And, similarly, the answer to the question whether an employee may sue claiming an illegal vaccine mandate is, as always, yes. Whether such a claim has merit (and thus may lead to liability) is where the grey area enters the conversation. This is what an employer and legal counsel should investigate before any policy determination is made.
Currently, there is no Ohio law which prohibits a private employer from mandating that its employees be vaccinated. And, no, HIPAA, does not prohibit an employer from asking an employee to prove that he or she was vaccinated. Furthermore, so long as a resulting adverse employment decision is not violative of existing regulatory workplace protections (ADA, FMLA, OSHA health and safety rules, etc.), any ensuing litigation will likely prove fruitless. However, in most scenarios, employers understandably want to avoid making any employment decision which might even potentially instigate a lawsuit, regardless of its merit, as the mere filing may result in expenses an employer wishes to avoid, e.g., retaining legal counsel and incurring legal fees or putting an EPLI carrier on notice of such filing and risking increased premiums or non-renewal.
Should an employer wish to implement such a policy, the decision to do so, and the method by which to get there, is dependent on several industry-specific conditions and should not be made without consulting with an attorney beforehand. Moreover, it is not advisable to take any adverse employment action related to a vaccine refusal (even if such action does not result in termination) without first having a written policy in place, because having such a policy in place, and acting consistently with it, better equips the employer and legal counsel in defending the claim.
The employment attorneys at Weston Hurd have developed COVID-19 vaccine mandate policies and have experience assisting employers through adverse employment decisions issuing from that policy. There are key decisions which require careful consideration before doing either. If you are thinking about such a policy, you are welcome to contact Matthew Seeley or your Weston Hurd attorney to discuss your business’s particular situation.