This article appears in the September 2021 issue of our monthly newsletter, Public Safety Labor News.
Many public employers are exploring or have implemented requirements that public safety employees provide proof of vaccination and, absent such proof, submit to periodic COVID-19 testing. Some employers are simply mandating that all employees be vaccinated.
The result has been a barrage of questions from employees as to the legality of these types of orders. In FAQ format, here’s LRIS’s take on the most common questions.
Don’t employees have a constitutional right to refuse COVID-19 vaccination?
No, as the United States Supreme Court has upheld the constitutionality of mandatory vaccination programs. In 1905, the Court ruled in Jacobson v. Massachusetts, 197 U.S. 11 (1905), that a mandatory vaccination program does not violate the due process liberty rights of citizens so long as the program does not “go so far beyond what [is] reasonably required for the safety of the public.” Jacobson has been repeatedly cited with approval by courts across the country in upholding vaccine mandates.
Note that some states, such as Oregon, have specific laws that may prohibit mandatory vaccinations for certain law enforcement, firefighter, and corrections employees, where other states such as Arizona have done so through a governor’s order.
If an employee is fired for refusing to comply with a mandatory vaccination requirement, will the employee receive unemployment insurance?
This is an open question. State unemployment compensation laws typically do not allow employees who have engaged in “misconduct” to collect unemployment insurance. The question will be whether non-compliance with a mandatory vaccination requirement is tantamount to insubordination, which would be a form of “misconduct.” Some state unemployment agencies have issued public statements that refusal to comply with a vaccine mandate would be a basis for denying unemployment compensation, but none have yet decided the issue in an actual case.
Can a public employer require an employee be tested for COVID-19?
Yes, subject to collective bargaining (described below), federal law allows for mandatory testing. In an online guidance, the Equal Employment Opportunity Commission has stated, “An employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.”
Do public employees have medical privacy rights when a public employer requires proof of vaccination?
Yes. The EEOC has stated that “the ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination.”
What mandatory bargaining issues are at play if an employer mandates vaccination, mandates proof of vaccination, or requires periodic COVID-19 testing for the unvaccinated?
We expect that most, if not all, labor boards confronted with the issue will rule that the decision to impose mandatory vaccination and/or period testing is a management right and not negotiable, but that the effects of the decision will be negotiable. That’s how California’s Public Employment Relations Board, the first labor board in the country to address the issue, has ruled. AFSCME v. Regents of the University of California (Cal. PERB 2021) PERB Decision No. 2783-H. New Jersey’s Public Employment Relations Commission recently followed suit.
Some of the mandatorily negotiable effects would include:
If an employer has a mandatory vaccination program, must it provide reasonable accommodations to employees on religious, disability, and/or pregnancy grounds?
Yes, if the employee meets certain legal thresholds for establishing a religious belief or disability. Simply stating in a conclusory fashion that “my religious beliefs” or “my medical condition” does not exempt an employee from being vaccinated. The employer may require the employee to produce proof of the tenets of his/her religion that forbid vaccination or medical proof that vaccination is inconsistent with the employee’s disability or pregnancy. Once that legal threshold is met, a public employer’s accommodation need only be “reasonable;” the employee is not entitled to his/her preferred accommodation. That means that a public employer could, for example, reassign an employee to a different position and/or require the employee to wear a mask. A public employee who refuses those reasonable accommodations is subject to termination. E.g., Horvath v. City of Leander, 946 F.3d 787, 792 (5th Cir. 2020).
Two of the vaccines have only emergency use approval from the FDA. Aren’t there FDA statutes on emergency approval that forbid mandatory vaccination programs in the workplace?
No. A recent federal court decision indicates that the emergency use status of COVID-19 vaccinations under FDA statutes does not preclude mandatory vaccination programs at work. Bridges v. Houston Methodist Hospital, Case No. 21-CV-01774 (S.D. Tex. 2021). On July 6, 2021, the United States Department of Justice issued an opinion letter to the same effect, ruling “Section 564(e)(1)(A)(ii)(III) of the Food, Drug, and Cosmetic Act concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.” In any case, this argument will shortly be foreclosed as the FDA has given permanent approval to the Pfizer vaccine and is expected to shortly do the same with respect to the Moderna and Johnson & Johnson vaccines.
What options are available to a public employee who has side effects from being vaccinated?
An employee may wish to file a worker’s compensation claim, seek any COVID leave available through their employer, and, if needed, look to use their sick leave banks. To be successful in a workers’ compensation claim, the employee would have to prove that her/his illness was caused by the vaccine, not merely coincident with the vaccine. Of note, a ripe area for bargaining is the availability of employer-sponsored COVID leave banks for vaccination side effects if vaccinations are mandated.
Also in the September 2021 issue:
