Recently, President Biden declared his efforts towards fully vaccinating 300 million Americans by the end of summer. As of February 27, 2021, both AstraZeneca and Novavax are in Phase 3 trials. The FDA issued its third emergency use authorization (“EUA”) for the Janssen – Johnson & Johnson vaccine on the same day.
Though it seems like the end is on the horizon, Americans are filled with questions. Can citizens be mandated to take a COVID vaccine? How would these mandates work, legally speaking? Can my boss fire me if I refuse to vaccinate against COVID?
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The federal government isn’t in charge of public health decisions. Public health is a State power. This explains why states made their own mandates, and a national mask mandate was never initiated.
The states have the constitutional authority to make reasonable laws to protect their citizens’ public health and safety. The Supreme Court made this decision with Jacobson v. Massachusetts in 1855. [i] Massachusetts allowed its cities to mandate smallpox vaccinations. There was a penalty of $5.00 for those who didn’t want to vaccinate. A penalized Henning Jacobson sued, saying that the mandatory vaccine law was unreasonable, arbitrary, and oppressive. Jacobson claimed this law undermined his personal liberty, but the Supreme Court didn’t agree.
In his Jacobson decision, Justice John Marshall Harlan stated:
The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. [ii]
New York State introduced a bill on December 4, 2020. The proposed bill prefaces by stating that this bill will only be necessary if the Department of Health determines that the COVID rates aren’t sufficiently decreasing. However, if the rates don’t drop, Assembly Bill A11179 would require COVID-19 vaccines for residents of the state without medical exemptions. This means that if the COVID rates aren’t decreasing well enough, New York will require a COVID vaccine for its citizens.
New York State won’t be the only one. Schools will most likely be adding a new vaccine to the list, granting specific exemptions. Employers can require vaccines too. The mandate just has to be reasonable. An extra caveat — the requirement needs to be reasonably related to the job’s needs.
The U.S. Equal Employment Opportunity Commission (“EEOC”) is a federal agency that enforces federal workplace discrimination laws. The agency’s ultimate goal is to encourage equal employment opportunities at respectful and inclusive workplaces for everyone.
When considering vaccine mandates, employers don’t have just one extra caveat. Workers have several anti-discrimination laws for the workplace, and the EEOC is the enforcing body of these laws. With the first update following H1N1, in March 2020, the EEOC updated its manual for ADA-compliant pandemic preparedness in the workplace. In December 2020, the EEOC added a document discussing employer-mandated vaccines and federal workplace discrimination protections.
As the EEOC corresponds, every employer could mandate COVID vaccinations. Employers should allow religious and medical exemptions. A COVID-19 vaccine administration program, not contracted by the employer, should be administering the vaccine.
The relevant discrimination laws are: (1) the Americans with Disabilities Act; (2) the Civil Rights Act of 1964, Title VII; and (3) the Genetic Information Nondiscrimination Act.
The Americans with Disabilities Act (“ADA”) forbids discrimination against people with disabilities. The ADA sets the standards of what is considered discrimination against people with disabilities. It requires public accommodations for people with disabilities.
Public accommodations consist of anything the government is involved in — schools, transportation, workplaces, etc. Every place that invites the general public requires such accommodations. Any workplace that employs 15 or more people has to follow ADA.
The Civil Rights Act prohibits discrimination based on race, color, religion, sex, and national origin. This Act halted segregation in public spaces and schools, enforced voting rights, and provided safeguards for people experiencing discrimination in public spaces. Title VII covers specifically employment discrimination. This includes during the hiring process, promotions, and terminating employment.
The Genetic Information Nondiscrimination Act (“GINA”) prohibits discrimination based upon genetic information. The Act is geared towards insurance companies and employers.
Essentially, employers aren’t allowed to discriminate among their employees based on genetic information for benefits such as health insurance, life insurance, and disability insurance.
Vaccine mandates for public school students are in every state. Each state has medical exemptions. Several states allow religious exemptions and personal belief exemptions.
ADA supplies medical exemptions for employees who can’t vaccinate because of medical reasons. The Civil Rights Act requires religious exemptions for employees that practice a religion that is against it. A third-party administering the vaccines follows GINA. Employers requiring documentation of the vaccine won’t violate GINA.
New York’s proposed A11179 would only accept medical exemptions to the vaccine. New York, Mississippi, California, Maine, and West Virginia all require school vaccinations unless there’s a medical exemption. After a measles outbreak in several states, some states decided that their citizens need these rules to protect public safety.
Because of Title VII, individuals or groups with sincerely held religious beliefs, practices, or observances against vaccines have protections against mandates. The EEOC stated that employers should encourage employees to get vaccinated, so religious exemptions may remain.
Your employers have a right to request additional documentation of such beliefs. For the COVID-19 pandemic to end, herd immunity must be established. In 1977, the Supreme Court set limits to religious accommodations private employers were required to make under Title VII.
TWA v. Hardison [iii] decided that employers weren’t required to face “undue hardship” by making reasonable efforts towards accommodations. Larry Hardison was let go. He couldn’t work on Saturdays because he followed Sabbath. Hardison originally worked at one location during the night shift and had gained seniority that allowed him to take off for Sabbath. He transferred to another location where he worked the day shift and no longer retained his former seniority. The Supreme Court said that the company tried to accommodate his preferences, but it doesn’t need to undermine the company structure and the unions.
If you work in any field that consistently interacts with the public, your employer can require a COVID vaccine. If your religious exemption causes undue hardship on your employer to accommodate, you could lose your job. The employer has to try to accommodate, but if it’s impossible, there may be nothing else that can be done.
Because of the ADA, medical exemptions have to be abided by. The EEOC stated that employers are to not see these employees as a direct threat to public health. Instead, there are four factors to consider on an individual basis:
In summary, the employer is required to conclude how likely it will be that this unvaccinated employee will spread COVID to the rest of the workplace.
Employers need to start by developing a written policy. Several other options would help encourage employees to get vaccinated.
For employers with questions about New York’s paid sick-leave laws, schedule your free consultation with Moshes Law today.
Under the Occupational Safety and Health Act (“OSHA”), employees could sue employers for not providing a safe and healthy workplace. People that received a medical exemption are relying on others to get vaccinated, so they aren’t exposed to these diseases. Without a mandatory vaccination policy, employees can sue under OSHA for the lack of safety protocols.