In Arizona, a number of hospital systems have instituted policies requiring their employees to be vaccinated by November 1.  While there have been no known legal challenges to these policies, courts in other states have addressed the issue.

Over the past couple of months, courts have upheld vaccine mandates. In the Texas case, 117 employees of a hospital challenged the hospital鈥檚 policy requiring employees to receive a COVID-19 vaccine as a condition of ongoing employment. The plaintiffs had alleged that employees who were terminated were wrongfully terminated. The district court cited the EEOC guidance confirming that employers may utilize vaccine mandates without violating the EEO laws. In a strong statement endorsing mandatory vaccine policies, the court held the employees 鈥渃an freely choose to accept or refuse a COVID-19 vaccine; however, if [they] refuse, [they] will simply need to work somewhere else.鈥� The plaintiffs subsequently appealed the decision to the Court of Appeals for the Fifth Circuit.

In an Indiana case, eight students challenged Indiana University鈥檚 policy requiring all students, staff, and faculty to receive the COVID-19 vaccine before starting classes in August unless they qualified for a religious or medical exemption.  If a student qualified for an exemption, the student would have to wear a mask at all times and also be subject to regular testing. The eight student plaintiffs challenged the policy by claiming that it violated the due process clause of the Fourteenth Amendment of the constitution.  The court rejected the claim and held that Indiana University had a legitimate interest of public health for its students, faculty, and staff.  On August 2, 2021, the Seventh Circuit affirmed the district court鈥檚 decision.   

Arizona private employers, in healthcare or otherwise, considering a vaccine mandate for their company, should keep the following considerations in mind:

–       There needs to be a medical exemption in the policy. Under the Americans with Disabilities Act (鈥淎DA鈥�) employers must provide reasonable accommodations for those employees who cannot comply with the vaccine mandate because of a medical condition. 

–       There must be an exemption for an individual whose sincerely held religious beliefs prevents him/her from getting a vaccine. Under Title VII, employers must provide a reasonable accommodation unless doing so poses an undue hardship.  

–       Employers should give employees advance notice of the date by which the employee needs to be fully vaccinated.  This allows the employee to schedule a vaccination, apply for an exemption, or look for another job.  

–       Employers can require employees to show proof of a COVID-19 vaccination. The EEOC guidance permits employer-inquiries to an employee regarding receipt of a vaccine from a third party, stating the inquiry is not disability-related.  Employers are cautioned, however, not to make additional inquiries past the employee鈥檚 vaccination status, as further questions could reveal disability-related information.

–       Employers must ensure the confidentiality of vaccine-related information. Under the ADA, the EEOC guidance requires employers to maintain COVID-19 related information separately from the employee鈥檚 personnel file and to keep the information private and confidential. 

Employers need to stay up-to-date on state laws in this area. For example, in Arizona, legislation was proposed that would prohibit employers from being able to require an individual to be vaccinated as a condition of employment. The bill did not progress.  Meanwhile, in Colorado, HB 1191 would have prohibited an employer from taking adverse action against an employee or an applicant for employment based on their COVID-19 immunization status, but that bill was postponed by the House Committee on Health and Insurance.  In Montana, however, on May 7, 2021, Governor Greg Gianforte signed House Bill 702 into law, prohibiting employers from requiring employees to disclose their immunization status and barring employers from requiring employees to receive certain types of vaccines or to possess an immunity passport.  

Jessica Post is the Employment and Labor Practice Group Director at Fennemore. She assists companies in employment discrimination, wage and hour, restrictive covenant and trade theft. She also works closely with human resources professionals to ensure clients comply with applicable state and federal labor laws. Reach her at jpost@fennemorelaw.com.

Jason Nutzman is an attorney with Fennemore. Among his practice areas, he works with human resource managers and in-house counsel providing employment advice and litigation support. Reach him at jnutzman@fennemorelaw.com.

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A bill to protect Arizona businesses, schools, healthcare providers, government agencies, and others from frivolous Covid-19 lawsuits took another step forward Wednesday when the state House Judiciary Committee approved the measure. 

The legislation, Senate Bill 1377, is needed to ensure that responsible businesses and employees, particularly those on the frontlines of the pandemic, are not targets of meritless lawsuits, said the sponsor of the bill, Sen. Vince Leach, R-Saddlebrooke, who testified at the hearing. 

As federal lawmakers have failed to pass protective legislation, about half the states have taken the matter into their own hands and passed Covid liability protection bills, Leach said.   

鈥淚n other words, they are seeing the effect of 鈥榮ue and settle鈥� — going after entities from schools to businesses to the medical community,鈥� he said. 

Safe harbor from unwarranted litigation

Judiciary committees from both houses have approved the legislation. The bill offers protection from reckless litigation for businesses and others who act in 鈥済ood faith鈥� to implement reasonable policies to protect their customers, clients and patients. 

SB 1377 also offers protection for injuries that result from indirect causes, such as a patient who was unable to get admitted to a hospital when healthcare facilities were barred from performing non-elective surgeries during the public health emergency. 

Under the legislation, plaintiffs would have to prove 鈥渃lear and convincing evidence that a person or provider failed to act or acted with wilful misconduct or gross negligence鈥� in order to win a civil suit. 

Representatives from industry, education, healthcare testify 

A number of representatives from the business, education and the healthcare community spoke on behalf of the bill at the hearing.

While the bill offers 鈥渢argeted and reasonable鈥� liability protection for responsible entities, it does not protect 鈥渂ad actors,鈥� said Courtney Coolidge, vice president for government affairs at the Arizona 番茄社区 of Commerce and Industry. 

鈥淪B 1377 is not blanket immunity. It protects responsible actors working diligently under extraordinary circumstances while preserving reasonable recourse for truly bad actors,鈥� Coolidge said.  

The bill also does not provide a new shield for employers, she said, and specifically exempts any claims that are already subject to the workmans鈥� compensation statute.

National law firms spending millions on ads to lure clients 

As businesses and employees continue to work on the frontlines to operate and respond to the crisis, many are in fear of malicious lawsuits, said Coolidge and others who testified at the hearing.  

Litigation tracking organizations show that their fears are not unfounded. Millions of dollars are being spent by plaintiffs-firms on television ads, a 鈥渃lear indication of what鈥檚 to come,鈥� Coolidge said. 

According to a report issued last month by the , plaintiff-side law firms funneled an estimated $34.4 million into television ads last year to attract COVID-19 clients. 

The report shows that 176,053 television ads offering legal services or soliciting legal claims mentioning COVID-19 aired in the U.S. from March through December 2020. The biggest spender is a large national firm that spent $10.5 million airing 70,000 ads advertising pandemic-related matters. 

Small businesses most vulnerable 

Mike Huckins, vice president of public affairs for the , also spoke on behalf of the bill at the hearing, stating that small businesses are among the most vulnerable to meritless claims.

鈥淭his bill is important to all businesses, but especially crucial to small businesses, many of whom our chamber represents,鈥� Huckins said. 鈥淭hose small businesses don鈥檛 have the legal resources necessary to protect themselves from frivolous lawsuits. 

鈥淭his bill will give them a lifeline in order to help businesses recoup after pandemic as long as they adhere to common sense health guidelines.鈥�

Since the federal government has failed to pass a national law for liability protection, now is the time for Arizona to step up, he said.

鈥淚t鈥檚 time that Arizona lived up to its business-friendly reputation and join 25 other states that have already enacted the legislation.鈥� 

The legislation is not without its detractors. Barry Aarons, a lobbyist for the Arizona Trial Attorneys Association, voiced opposition to the bill, saying it places the standard for proof so high that legitimate medical malpractice claims will be almost impossible to litigate.

Thousands of employers support liability protection

Meanwhile, stakeholder groups have spent months working with legislators to craft SB1377. Language in the bill is similar to other liability laws passed in Arizona and other states. Governor Doug Ducey, in his State of the State address, also identified the need to protect job creators and health care workers against predatory COVID exposure lawsuits. 

To read the bill鈥檚 full text, go to: .

Organizations supporting the bill

A coalition of nearly 100 businesses, trade associations, schools, nonprofits, health providers and other organizations in Arizona support SB 1377 including:

21st Century Healthcare

Alliance of Arizona Nonprofits

American Academy of Pediatrics, Arizona Chapter

American Heart Association

American Property Casualty Insurance Association

Americans for Prosperity

Amigos Trade Association

Apache Junction 番茄社区 of Commerce

Arizona Academy of Family Physicians

Arizona Alliance of Boys and Girls Clubs

Arizona Assisted Living Homes Association

Arizona Association of Community Managers

Arizona Association of Health Plans

Arizona Association of Providers for People with Disabilities

Arizona Automobile Dealers Association

Arizona Automotive Wholesalers Association

Arizona Bankers Association

Arizona Board of Regents

Arizona 番茄社区 of Commerce & Industry

Arizona Chapter National Safety Council

Arizona Charter Schools Association

Arizona Council of Human Services Providers

Arizona Dental Association

Arizona Farm Bureau Federation

Arizona Foot and Ankle Medical Association

Arizona Health Care Association

Arizona Hispanic 番茄社区 of Commerce

Arizona Hospital and Healthcare Association

Arizona LeadingAge

Arizona Licensed Beverage Association

Arizona Lodging and Tourism Association

Arizona Manufacturers Council

Arizona Medical Association

Arizona Mining Association

Arizona Multihousing Association

Arizona Nurses Association

Arizona Optometric Association

Arizona Osteopathic Medical Association

Arizona Petroleum Marketers Association

Arizona Pharmacy Association

Arizona Realtors

Arizona Restaurant Association

Arizona Retailers Association

Arizona Rock Products Association

Arizona School Risk Retention Trust, Inc.

Arizona Small Business Association

Arizona Soccer Association

Arizona State Association of Physicians Assistants

Arizona State University

Arizona Technology Council

Arizona Trucking Association

Associated General Contractors of America Arizona Chapter

Buckeye 番茄社区 of Commerce

Building Owners and Managers Association of Greater Phoenix (BOMA)

Carefree Cave Creek 番茄社区 of Commerce

Chandler 番茄社区 of Commerce

Chubb Insurance

City of Surprise

City of Yuma

Coconino County

County Supervisors Association of Arizona

East Valley 番茄社区s of Commerce Alliance

Education Finance Reform Group

Experience Scottsdale

Fountain Hills 番茄社区 of Commerce

Fresenius Medical Care North America

Gilbert 番茄社区 of Commerce

Glendale 番茄社区 of Commerce

Greater Flagstaff 番茄社区 of Commerce

Greater Florence 番茄社区 of Commerce

Greater Oro Valley 番茄社区 of Commerce

Greater Phoenix 番茄社区 of Commerce

Greater Phoenix Economic Council

Greater Phoenix Leadership

Green Valley Sahuarita 番茄社区 of Commerce & Visitor Center

Health System Alliance of Arizona

Home Builders Association of Central Arizona

HonorHealth

InvisionAZ

Lake Havasu Area 番茄社区 of Commerce

League of Arizona Cities and Towns

Marana 番茄社区 of Commerce

Mesa 番茄社区 of Commerce

Mutual Insurance Company of Arizona

National Association of Industrial Office Properties, Arizona Chapter

National Federation of Independent Business 

Nationwide Mutual Insurance Company

Northern Arizona University

Page-Lake Powell 番茄社区 of Commerce

Peoria 番茄社区 of Commerce

Pharmaceutical Research and Manufacturers of America 

Phoenix Formulations

Prescott Valley 番茄社区 of Commerce

Queen Creek 番茄社区 of Commerce

Republic National Distributing Company of Arizona

Republican Liberty Caucus of Arizona

Scottsdale 番茄社区 of Commerce

Southern Arizona Home Builders Association

Southern Arizona Leadership Council

Southwest Valley 番茄社区 of Commerce

Southwest Veterans 番茄社区 of Commerce

State Farm Insurance Companies

Surprise Regional 番茄社区 of Commerce

Tempe 番茄社区 of Commerce

Total Spectrum

Town of Queen Creek

Tucson Metro 番茄社区

United Dairymen of Arizona

United Services Automobile Association 

University of Arizona

Valley Partnership

West Valley 番茄社区s of Commerce Alliance

Western Plant Health Association

Wickenburg 番茄社区 of Commerce

Wine and Spirits Wholesalers Association of Arizona

Yavapai County Contractors Association

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