By: Dan Mackrides
The COVID-19 pandemic places American Corporations in an unenviable position. Labor shortages, supply chain issues, and inflation all present corporations with serious challenges. Additionally, the U.S. recently set a record for COVID-19 cases due to the Omicron variant. In the face of this, President Biden’s vaccine mandate was recently struck down by the Supreme Court. In the absence of federal direction, corporations face difficult decisions regarding their own vaccination policies.
Corporations face mixed consequences from the mandate’s failure, but more than anything, they face a fundamental question. In the absence of Federal mandates, what are they to do? In answering, corporations are likely to face a battle between the liability they may face for not enforcing mandates and the liberty that they would curtail to enforce them.
While vaccines have proven effective, their protection is not 100%, and breakthrough infections are possible. Furthermore, studies show vaccine efficacy falls over time, exposing vaccinated people to greater risk of infection. If corporations take no steps to enforce vaccination or regular testing, they risk COVID spread, exposing them to liability for negligence.
Negligence consists of the breach of a duty of care that causes damages. In the case of a COVID-19 outbreak, a corporation could be held in breach of their duty of care for not instituting vaccination and testing protocols. If workers catch COVID-19, the costs of hospitalization, as well as permanent injuries suffered may stand for the damages. Causation will be the hardest element to prove, as seen from a recent suit brought against Carnival Cruise Line for exposing passengers to COVID-19. This suit failed in part because plaintiffs did not establish causation. It is not difficult to extrapolate that if a plaintiff had trouble establishing causation while on a Cruise ship, she may have a more difficult time proving that a COVID-19 infection was caused by workplace exposure rather than exposure at any other close point in time and space. While this may ease corporate concern, the pressure of potential litigation – and the large financial requirements of such – are still pressures to take action to combat the spread of COVID-19 in the workplace.
Another pressure to pursue corporate vaccine mandates are vaccinated employees. United Airlines pilots and staff threatened to refuse to fly with their unvaccinated coworkers. Already, tension between vaccinated and unvaccinated coworkers has resulted in increased reports to HR, leading to discord in the workplace. These issues may serve as practical reasons, if not legal ones, to institute corporate vaccine mandates.
On the other side of the equation, corporations can avoid what threatened to be a massive labor issue, as a large minority of U.S. citizens steadfastly refuse to be vaccinated, arguing their bodily autonomy is at stake and that they would rather quit or get fired than be vaccinated. As a practical measure, this threat of losing a large segment of the workforce is strong, corporations are already pausing their own vaccine and testing programs. While bodily autonomy is certainly considered a form of liberty protected by the Constitution, opponents of vaccines face an uphill battle if they hope to use deprivation of liberty as a legal position to battle corporate vaccine mandates. Surely, opponents will look to case law that opposed forced medication, one such case being Washington v. Harper, a 1990 Supreme Court decision. Language from this case would sound very persuasive to the general public, “[t]he forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.” However, this case likely will not prove useful to the cause these vaccine opponents at it involved a prisoner bringing the state of Washington to Court to enjoin his prison from forcing anti-psychotic medication on him. Private corporations are not government entities, and so the Constitutional protections will only apply against companies if they are found to be partaking in state action. The presence of a regulation is rarely enough for state action, the private actor must either be serving a public function completely and traditionally served by government, or the government must be so entangled in the private action as to be involved. Neither of these exceptions would apply to a private vaccine mandate, even if it was encouraged by a state or federal government, and opponents to a private vaccine mandate likely have no legal recourse.
One solution rests on state governments, vaccine mandates passed by states have been repeatedly upheld by the Supreme Court. Corporations can also pass their own mandates as many corporations have done. To avoid losing non-compliant employees, these corporations could institute a hybrid model of work, keeping unvaccinated employees work-from-home until the pandemic is over. These companies may offer incentives to employees to get vaccinated and return to the office. While unvaccinated employees may complain about unfair treatment, they are not likely to win that legal argument unless they can pin their vaccination status on their membership in a protected class. This option is not universal, many jobs are not accomplishable remotely. For workplaces without the opportunity for social distancing, measures that were in place before vaccines were available may be used. If a corporation has very few unvaccinated individuals, it may consider terminating them. Federal regulation suggests this would not draw employment law sanctions, and may avoid negligence liability.
There is not likely to be a single, cure-all solution. Corporations must weigh the competing interests of liability and liberty in forming corporate vaccine policy. They must weigh whether they can afford to lose their unvaccinated employees by mandating vaccines. Conversely, they must consider the ramifications of doing nothing, possibly exposing their workforces to COVID outbreaks, or simply agitating their vaccinated employees and risk losing them in turn.
 Alyssa Fowers & Andrew Van Dam, The Most Unusual Job Market in Modern American History, Explained, Washington Post (Dec. 29, 2021), https://www.washingtonpost.com/business/2021/12/29/job-market-2021/.
 John Gittelsohn, Snarled Supply Chain Is Making U.S. Warehouse Shortage Worse, Bloomberg (Nov. 9, 2021), https://www.bloomberg.com/news/articles/2021-11-09/snarled-supply-chain-is-making-u-s-warehouse-shortage-worse#:~:text=A%20complex%20web%20of%20factors,synchronized%20flow%20of%20global%20trade.
 Christopher Rugaber, Fed’s Powell: High Inflation Poses a Threat to Job Market, AP News (Jan. 11, 2022), https://apnews.com/article/joe-biden-business-prices-inflation-jerome-powell-9521329e7a977c78f7765784112e5c63
 Covid Updates: Omicron Drives New U.S. Virus Cases to a Daily Record, N.Y. Times (Jan. 7, 2022), https://www.nytimes.com/live/2021/12/29/world/omicron-covid-vaccine-tests.
 National Federation of Independent Business v. OSHA, No. 21A244, slip op. (U.S. Jan. 13, 2022).
 See generally, Businesses Face Conflicting State and Local Rules on Vaccine Mandates After SCOTUS Ruling, CBS News (Jan. 14, 2022) https://www.cbsnews.com/news/scotus-biden-osha-covid-vaccine-mandate-businesses/.
 The Possibility of COVID-19 after Vaccination: Breakthrough Infections, CDC (Dec. 17, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html#:~:text=Fully%20vaccinated%20people%20with%20a,symptoms%20than%20in%20unvaccinated%20people.
 Sara Y. Tartof, PhD et. al., Effectiveness of mRNA BNT162b2 COVID-19 Vaccine up to 6 Months in a Large Integrated Health System in the USA: a Retrospective Cohort Study, 398 Lancet., no.10309, at 1407-16 (2021).
 Negligence, Black’s Law Dictionary (11th ed. 2019).
 See generally Chung v. Carnival Corp., No.20-cv-4954DDP, 2021 WL 3501519, at *1 (C. D. Cal. Aug. 9, 2021).
 Id. at *4.
 Chris Isidore, United Says Vaccinated Pilots and Flight Attendants Could Refuse to Fly with Unvaccinated Coworkers, CNN Business (Oct. 26, 2021), https://www.cnn.com/2021/10/26/business/united-vaccine-mandate-lawsuit/index.html.
 See Holly Ellyatt, As Many Return to the Office, Tensions Flare Between the ‘Vaxxed and Unvaxxed’, CNBC (Sep. 14, 2021), https://www.cnbc.com/2021/09/13/office-tensions-rise-between-the-vaccinated-and-unvaccinated-.html
 Chris Isidore & Virginia Langmaid, 72% of Unvaccinated Workers Vow to Quit if Ordered to Get Vaccinated, CNN Business (Oct. 28, 2021), https://www.cnn.com/2021/10/28/business/covid-vaccine-workers-quit/index.html; Andrea Hsu, Thousands of Workers are Opting to Get Fired, Rather than Take the Vaccine, NPR (Oct. 24, 2021), https://www.npr.org/2021/10/24/1047947268/covid-vaccine-workers-quitting-getting-fired-mandates.
 CBS News, supra note 6 (“General Electric has paused its COVID-19 vaccine and testing requirements for employees in wake of the Supreme Court’s ruling . . . .”).
 See generally Row v. Wade, 410 U.S. 959 (1973).
 Washington v. Harper, 494 U.S. 210 (1990)
 Id. at 229.
 See generally Id.
 Erwin Chermerinsky, Constitutional Law Principles and Policies 532-33 (5th ed. 2015) (“Private conduct generally does not have to comply with the Constitution. This is often referred to as the ‘state action’ doctrine.”).
 Id. at 557 (“[G]overnment . . . regulat[ion] is insufficient for a finding of state action . . . .”).
 See generally Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).
 See generally Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).
 Jacobson v. Massachusetts, 197 U.S. 11 (1905).
 Xander Landen, These Companies are Firing Unvaccinated Employees as SCOTUS Mulls Biden Vaccine Mandate, Newsweek (Jan. 13, 2022), https://www.newsweek.com/these-companies-are-firing-unvaccinated-employees-scotus-mulls-biden-vaccine-mandate-1669146.
 Segregating Unvaccinated Workers? Think Twice Attorneys Warn, Bloomberg News (May 21, 2021), https://news.bloomberglaw.com/daily-labor-report/segregating-unvaccinated-workers-think-twice-attorneys-warn (“Workers can refuse the jab based on disability or religious belief, so employers could then face allegations of bias against those workers if they suffer negative consequences as a result of being segregated.”).
 Sydney Ember, They Never Could Work From Home. These Are Their Stories, N.Y. Times (Sep. 22, 2021), https://www.nytimes.com/2021/09/22/business/never-remote-workers-covid.html.
 Bernard J. Bobber, 3 Ways Manufacturers Can Continue Production During the COVID-19 Pandemic, AEM (Apr. 13, 2020), https://www.aem.org/news/3-ways-manufacturers-can-continue-production-during-the-covid19-pandemic.
 Allen Smith & Lisa Nagele-Piazza, Employers React to Workers Who Refuse a COVID-19 Vaccination, SHRM (Dec. 9, 2021), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/if-workers-refuse-a-covid-19-vaccination.aspx.