Author: Mariana Teran

As employees start to head back to the office there is one question on their mind – do I have to get vaccinated to go back to the office?  While many employees voluntarily chose to get the Covid-19 vaccine, others are concerned about losing their job if they choose not to get vaccinated.

Whether an employer can require an employee to get vaccinated depends on state law.  With the ever evolving circumstances surrounding the COVID-19 pandemic, states are still in the process of passing legislation surrounding employer’s requirement or discrimination based on receiving the Covid-19 vaccine.  Several states have pending legislation that would not allow employers to require employees to receive the Covid-19 vaccine as part of their employment.  Other states have pending legislation to protect employers who require employees to be vaccinated.

Federal law may still offer some protections to employees who choose not to get vaccinated.  Employees may be exempt for religious beliefs or medical issues.  Employees that are covered by the Title VII of the Civil Rights Act of 1964 who have made employers aware of their religious beliefs may have the foundation to receive a religious exemption.  Additionally, the Americans with Disabilities Act may protect individuals that have a protected disability that would be medically averse to receiving a vaccination.  Employers will need to make appropriate accommodations for employees with disabilities.

For employers that do require employees to be vaccinated, there are limitations on what they can ask employees.  Employees who receive their vaccination aside from employer sponsored vaccination, are not required to show medical proof of vaccination.  Employers may ask employees whether they are vaccinated against COVID, but that is the extent of proof employers can require from employees.  As the world enters a new phase, many questions are still left unanswered surrounding the COVID-19 vaccine. Alternatively, will employers be held liable if they do not require vaccinations?  Some legal professionals would be surprised if employers were but it is not outside the realm of possibility.  

Requiring vaccinations may largely depend on the employer’s industry.  For example, hospitals and other medical entities may require employees to be vaccinated.  Employers in the medical industry already require employees to receive other routine vaccinations and tests as part of their continued employment.  There are, however, employees who work from home or have limited contact with the public. In these instances, an employer may decide not to require employees to get vaccinated since they do not regularly enter the workplace.

The U.S. Center for Disease Control regularly encourages everyone to receive a COVID-19 vaccine in the interest of public health. Nonetheless, whether employees are vaccinated or not, employers are still encouraged to maintain safety protocols to protect their employees and the public from being exposed to the COVID-19 virus.  

In March 2020, for the first time in this nation’s history, all 50 states declared a major disaster due to the novel coronavirus (“Covid-19”).  In response to the declaration, the Federal Emergency Management Agency (“FEMA”) began procuring domestic vendors to fulfill contracts for personal protective equipment (“PPE”) and testing supplies.

Months later, FEMA is under review for granting Covid-19 emergency contracts to businesses that were unable to meet their contractual obligations.  Typically, FEMA engages in a competitive bidding process prior to choosing a vendor to fulfill a contract, as outlined in 2 CFR § 200.320.  Abandoning its own protocol, FEMA awarded contracts to new vendors to manufacture PPE without evaluating the vendors or their capabilities.  FEMA awarded approximately 1.8 billion dollars in contracts without engaging in a competitive bidding process. Now vendors have defaulted on contacts claiming they are unable to meet delivery deadlines or production quantities.  Without the necessary PPE, hospitals and governmental officials are at increased risk of contracting Covid-19.  The 2020 PPE shortage demonstrates the necessity of the competitive bidding process to prevent fraud and waste of taxpayer funds.

Some of the contract awardees had only come into existence a few days before they accepted contracts.  Several vendors had no history of manufacturing PPE or any other type of medical equipment.  These vendors attempted to act as intermediates between FEMA and foreign manufacturers, accepting contacts and then assigning their contractual rights.  Without proper evaluation of vendors, the possibility of ethical violations arises.  One vendor, founded by a former White House aide, was awarded a three million dollar contract for masks.  The company had no experience manufacturing masks and delivered several defective masks.

The competitive bidding process is not new to FEMA or the federal government. There are multiple methods used for the proposal bidding process but the suggested method is a sealed bid. Bids are publicly solicited and a firm fixed price contract is awarded to the responsible bidder whose bid, conforming with all the material terms and conditions of the solicitation, offers the lowest in price.  When a sealed bid process is not used, then a competitive proposal process is sought. The competitive proposal process is normally conducted with more than one source submitting an offer, and either a fixed price or cost-reimbursement type contract is awarded. Contracts must be awarded to the responsible firm whose proposal is most advantageous to the program, with price and other factors considered.

FEMA does have discretion to allow for noncompetitive procurements under certain circumstances, including when FEMA determines that immediate actions required to address a public exigency or emergency and cannot be delayed by use of a competitive solicitation.  Even under its discretion, FEMA should take administrative steps to protect federal funds from fraud, waste, and abuse.

On January 17, 2020,
the U.S. Supreme Court
granted the writ of certiorari to hear two cases involving employers’
obligation to provide health insurance coverage for contraceptives. Employers
are currently
required to provide employees with health insurance including women’s
preventive care under the Affordable Care Act (“ACA”). In 2011, the U.S.
Department of Health and Human Services (“DHHS’) announced a rule to allow employers to use religious
beliefs as an exception to providing female employees with insurance that
includes women’s preventive care.  Later,
in 2017, DHHS announced an interim rule which expanded
upon its original exemption to include employers who had not only religious
conflicts but also moral or ethical objections. 

The Supreme Court
consolidated two cases relating to the DHHS’ rule.  The first case began before the new rule went
into effect, when the Attorney General of Pennsylvania filed for a
preliminary injunction to stop the rules enforcement. The District Court for
the Eastern District of Pennsylvania entered a nationwide injunction against
the rule’s enforcement;  the Third Circuit Court upheld
the District Court’s decision. The second
case involves a right of intervener filed by the Little Sisters of the
Poor, a mission based organization led by catholic nuns 
who intervened to object to the national
injunction on the DHS’ rule.

 In support of the DHHS rule, religious
organization and employers contend that under the Religious Freedom Restoration Act (“RFRA”) they are entitled to exercise their religious
belief.  Since the use of contraception is
not supported by those religious beliefs, religious organizations claim an
exemption from the ACA requirement.  However,
Pennsylvania
argued that the DHHS did not follow the rule making requirements under the
Administrative Procedures Act, and the rule goes beyond the legislative intent
of the ACA.  Further, RFRA does not
create an exception for the ACA requirement because the ACA’s requirement does
not put a substantial burden on religious exercise.  Finally, Pennsylvania argues that the interim
rule would create irreparable harm to state citizens by limiting access to
affordable health care.

This is not the first
time the Supreme Court has listened to an argument regarding the religious
exception to the ACA. In 2014, the court decided in Burwell v. Hobby Lobby Stores by a 5-4 decision
that under RFRA, DHS could expand religious exceptions to for-profit companies
since those rights were already extended to non-profit companies. In her dissent,
Justice Ginsburg, disagreed with the majority’s view because for-profit
companies are not allowed to declare a religion.  Additionally, judicial
precedent states that a religious belief cannot “impinge on the rights of
third parties”.

In the writ for certiorari
in Little Sisters of the Poor Home for the Aged v. Burwell, the petitioners
asked
the Court to answer whether the federal government lawfully exempted
religious objectors from the regulatory requirement to provide health plans
that include contraceptive coverage.  Meanwhile,
in Trump v. Pennsylvania, the State of Pennsylvania proposed the following
questions to the Court: First, whether the
agencies had statutory authority under the ACA and the RFRA, to expand the
conscience exemption to the contraceptive-coverage mandate; and second, whether
the agencies’ decision to forgo notice and opportunity for public comment
before issuing the interim final rules rendered the final rules—which were
issued after notice and comment—invalid under the Administrative Procedure Act,
5 U.S.C. 551 et seq., 701 et seq; and third, whether the court of appeals erred
in affirming a nationwide preliminary injunction barring implementation of the
final rules.

The Supreme Court is
poised to deliver its opinion on this high-profile issue before the end of the
current session. The court’s decision might finally clarify the obligations
employers have to provide women’s preventative healthcare to female employees
and if there are exceptions to that obligation under RFRA, the ACA or the U.S.
Constitution. 

Over the past decade, electric cigarettes or
commonly referred to as e-cigarettes have become a blossoming market as
technology has upgraded traditional cigarettes. 
The e-cigarette industry has urged that vaping is a “safer” method of
smoking. In August 2019, e-cigarettes claimed its first victim. 
Earlier this year, the Center for Disease Control reported the
hospitalization of a young man in Illinois for a respiratory related illness
that was attributed to vaping. Eventually the young man succumbed to his
illness.  Since the first incident, the
CDC has attributed an additional thirty three respiratory-related deaths to
routine vaping habits.

Why is vaping so popular? As technology
evolves, so does the method people used to inhale tobacco.  Whether the delivery is a pipe, a cigar, a
cigarette, or—today’s method—e-cigarettes, tobacco is tobacco is tobacco.  Regardless of the tobacco product, the use of
tobacco increases health risk of the user.
The popularity of vaping grew when companies released flavored vaping oils
and tobacco products, which attracts a new, younger market.

If you offer a child a
lollipop, they will gladly accept it, so comes as no surprise that teenagers
and young adults are attracted to e-cigarettes, especially with flavors like
strawberries or cotton candy.  States
have tried to address this issue by passing statutes to restrict the minimum age requirement to
purchase e-cigarettes to 18 or 21.  This
hasn’t stopped teenagers and young adults from purchasing
e-cigarettes.  The United States Surgeon
General reported in 2018 that e-cigarette use increased among high schoolers by
78%.  So, what can the legislature do to discourage
the sale of e-cigarettes to young people?

States are considering passing statutes
prohibiting the sale of flavored e-cigarettes and other e-cigarette
regulations.  In the meantime, state
executive offices have taken the lead on dealing with this issue.  Montana Governor Steve Bullock directed the
Montana Department of Health and Human Services to issue a temporary ban on flavored e-cigarettes until
the state can determine what type of action to proceed with.  Montana is not alone; Michigan has also banned the sale of flavored
e-cigarettes.

Other states have taken this battle into the
courthouse.  The state of New York has filed suit against twenty-two
online flavored e-cigarette vendors accusing them of creating a “public
nuisance” by selling targeted flavors to youths under the state age limit.

State regulation has not gone unnoticed by the
e-cigarette industry.  One of the largest
e-cigarette retailers, JUUL, has announced it will suspend the sales
of flavored e-cigarettes.  This isn’t the
only change at JUUL. In September, the retailer replaced its CEO, Kevin Burns,
with K.C. Crosthwaite, the CGO for Altria, a traditional tobacco company.  JUUL also announced it will suspend all
television, print, and digital advertisements. 
The e-cigarette industry is feeling the financial effects of the various
bans.  Altria reported a 19% loss in stock prices
over since the beginning of 2019.

Even with all the
government regulation and voluntary removal of products, consumers can still
purchase unflavored tobacco and mint e-cigarettes.  Whether the sale of these products will be
enough to keep the industry afloat is undetermined.  What is certain is that a wave of change is
rushing towards the e-cigarette industry which could drown the entire
industry.  Compliance with government
regulation and consumer claims could cause serious damage to the e-cigarette
industry.