Legal Newsline Interviews Shook Employment Litigator on Mask and Vaccine Mandates

Legal Newsline turned to Shook National Employment Litigation and Policy Practice Leader Bill Martucci to navigate questions they see employers asking themselves in an increasingly unpredictable pandemic with unknown legal consequences: “Can they require employees to be vaccinated? Does the fact vaccines are being administered under an Emergency Use Authorization, instead of full Food and Drug Administration (FDA) approval, change the equation?”

Add in the recent CDC shift on recommending masks be worn indoors even by the vaccinated, and employers find themselves quickly re-evaluating their policies. In “Is That Employee Mask Mandate to Protect You, or the Business?” Martucci recommends businesses follow the latest advice from health officials and what is required from their industries to protect themselves from adverse litigation. 

“If that is changing, it’s a duty of management to keep abreast of appropriate CDC guidelines,” Martucci stated. “It will likely turn on what is considered best practice.” 

Lawsuits alleging that it is illegal for employers and universities to mandate these vaccines that have not been fully approved by the FDA for their employees and students have found courts favoring the vaccine mandates. On this point, Martucci said, “The law so far has been relatively straightforward, perhaps surprisingly so.”

Other topics of consideration are the possible protection in workers’ compensation for employers, reasonable accommodations considerations and determining medical and religious exemptions, the latter of which Martucci mentions, could involve monitoring an employee’s social media to determine if the religious exemption is being requested honestly. Said Martucci of employees requesting the religious exemption, “If the basis for their opposition has been articulated in ways that have nothing to do with religion, those reasons can be looked at with a bit more care and skepticism.”