In the article “More Worker Vax Suits May Be Coming, But Are Likely To Fail,” Law360 turned to labor and employment partner Dan Prokott for insight on navigating COVID-19 vaccination requirements and potential suits.
According to Prokott, there is disagreement over whether the federal statute that has been the subject of lawsuits challenging vaccines applies to private employers or just government actors. It’s also unclear whether the “consequences” an employee must be informed about refers to medical consequences or employment consequences, he said.
“They are definitely interesting arguments,” Prokott said, but “like many things COVID-related, we are in a bit of uncharted territory on some of these issues.”
Regarding one recent suit, Prokott said the withdrawal of a motion for a temporary restraining order and preliminary injunction “is a bit telling.” “I think it shows that these lawsuits could be challenging for plaintiffs,” he added. However, Prokott noted that employers should still be careful.
For example, if an employee declines to be vaccinated over a good-faith concern about the vaccine’s safety, and they are fired as a result, they could claim they’ve been retaliated against for raising concerns about workplace safety. Prokott warned, “That could be a risky fact pattern for that employer.”
In conclusion, Prokott said, “What the overwhelming majority of employers that I talk to want to do, and are in fact doing, is taking steps to encourage rather than mandate the vaccine.”
The full article is available for Law360 subscribers.