By Chris Avcollie
In 2021 there is a new status symbol that will determine who is “in” and who is “out” in many social situations. It’s not fashion or cars and it’s not your number of followers on social media. The new hot status for 2021 will be: “Vaxed” or “Un-Vaxed.”
As the FDA approved Covid-19 vaccines become more widely distributed over the next few months, the question of who is “Vaxed” and who is “Un-Vaxed” will start to take on tremendous importance. As new strains of Covid-19 spread we can easily imagine restaurants or stores with “Vaxed Only!” signs on their doors. One’s vaccination status could soon determine one’s access to schools, public conveyances, businesses, and churches. It may also determine where one can work.
As businesses and institutions grapple with the effects of the pandemic the wide availability of effective vaccines will force the issue of whether to require their employees to receive the vaccine in order to keep their jobs. (See related article Employer Mandated Covid-19 Vaccinations – Can They Do That?). For businesses in customer-facing industries like hospitality or food service, the question is pressing. Will anyone want to go to a barber that was not vaccinated? Wouldn’t customers feel safer eating at a restaurant where all employees are vaccinated? While many are awaiting the vaccine with anticipation, many have concerns about the vaccines and do not want them. Some are medically unable to receive a vaccine and others have personal or even religious objections to them. What right does an employee have to refuse an employer’s mandated Covid-19 vaccine? Will employees be fired for refusing? What can employer’s do to respond to valid and deeply held objections to a blanket vaccine requirement?
The basic rule is that in an employment at will situation an employer can require a vaccine as a condition of employment. Almost all employment in the US is employment at will. If an employee is a member of a union, then a vaccine mandate would be negotiated by the union, but would likely become a requirement at the end of that process. Even where an employee has an individually negotiated employment contract, those agreements often contain provisions that allow the employer to change company policies and job requirements, particularly for worker safety. Thus, in most all situations, an employer can require its workers to be vaccinated.
If it strikes you as outrageously unfair that employers can require you to undergo an intrusive medical procedure against your will and your only recourse is to give up your livelihood and sole means of support for you and your children, you are not alone. While most Americans are clamoring for this particular vaccine there is also widespread concern. Many women of child-bearing age have expressed objections based on the lack of longitudinal research on the effects of the vaccines on the reproductive system. Many people of color have expressed objections to the vaccine based on historic precedents of medical experimentation on minority populations. If the ability to force vaccinations on employees under threat of economic ruin seems to be too much power for employers, we can thank the “at will employment rule.” This is the great default principle of American employment law. It holds that employers can essentially do (or not do) anything they want to their employees provided they do not violate specific statutes. Under this rule, as long as they stay within the law, employers are a law unto themselves.
There are a few exceptions to this general rule allowing employer mandated vaccines. While the employment at will rule allows employers to require vaccines as a condition of employment, their vaccination policies must comply with the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other state and federal workplace laws. The question then becomes when do these laws prevent an employer’s vaccine requirement?
One limitation on an employer’s right to force vaccinations covers employees who cannot be vaccinated due to a disability. The ADA requires that if an employer’s vaccine requirement will force the termination of a worker who cannot be vaccinated due to a disability, the employer must show that the unvaccinated worker will pose a “direct threat” or will create a serious risk of “substantial harm” to the worker, co-workers, or the public. Only if that risk is significant and it cannot be eliminated or reduced by some reasonable accommodation can the disabled employee be terminated. The EEOC has provided some guidance on how employers should assess the potential risk of an unvaccinated employee including: assessing the duration, severity, likelihood, and imminence of the potential harm. If an accommodation such as masks, or a work from home option would reduce the risk, then the disabled employee should be accommodated.
While this exception is fairly easy to understand on paper, it might not be so easy to implement in the workplace. What if the only way to mitigate the risk and to accommodate the one disabled employee is to require all other employees and all customers to wear masks in the facility? Right now everyone expects to wear masks all the time anyway but what about when the mask restrictions could be lifted due to mass vaccinations? Will that still be a “reasonable accommodation?”
A second exception to the employer’s right to force vaccinations on their workers is carved out in Title VII. An employer must accommodate an employee’s sincerely held religious objection to a vaccine unless the accommodation causes “undue hardship” to the employer. Sounds fair enough. The trouble with this rule is that the definition of “undue hardship” is any accommodation that has more than a “de minimis” or “absolutely minimal” cost or burden to an employer. How will courts apply this rule in the example above, where a single employee with a religious accommodation can continue to work only if all employees and customers are provided PPE? As this example suggests, the “de minimis” standard could be very difficult to meet in the workplace.
While the EEOC is trying to develop a set of workable guidelines that accommodates employee’s rights under existing laws like the ADA and Title VII, there are no accommodations available for the employee who objects to vaccination based on personal concerns like racial disparities or lack of research on fertility effects. For most workers who object to vaccination for a host of personal reasons, there will be no option for dissent. “Shoot up and shut up” will be the rule for many.
There are times when public safety and the protection of our economy should take precedence over personal choice. I personally intend to get vaccinated as soon as possible whether my employer wants me to or not. (Carey & Associates, P.C. will leave it to the employee’s discretion about whether to vaccinate or not). It is important however, to consider the power dynamics and the broad implications of the employment at will rule when it invades the province of our bodily integrity and personal conscience. In a world where politicians are willing to substitute facts for politically convenient fantasies, it is easy to imagine these power dynamics leading to much more extensive invasions of personal choice. In the short term at least, “Vaxed” is likely to be the new “Black.”
If you would like more information about this topic, please contact our employment attorneys at Carey & Associates, P.C. You can also send an email to firstname.lastname@example.org or call (203) 255-4150. If you liked this article, please leave us a review HERE.
By Mark Carey
Simple Answer- Yes! After less than a year of this grueling Covid-19 pandemic, we were surprised to hear that a vaccine had been developed so quickly. We are now in the vaccination roll out phase, which is proving to be not so simple. As part of the nationwide vaccination process, the federal government has teamed up with employers to mandate employees vaccinate nationwide.
If you have not yet heard, employers are requiring employees to get the Covid-19 vaccination before returning to work. How can an employer do this? Is the Covid-19 vaccination a medical procedure wherein specific medical questions will be asked? What if I do not want to get vaccinated because of other medical health concerns? What if I object on religious grounds? The following discussion will answer these questions and more.
As vaccination for the Covid-19 virus is at the forefront of everyone’s mind, I decided to research this issue further. I was curious about the history of mandatory vaccinations by the federal government and what role this plays on your liberty interest from government sponsored intrusion on your physical being. You will have to bear with me here as you will need a little constitutional law background to understand this state sponsored infringement of your liberty interest now being implemented through employers.
The 14th Amendment to the United States Constitution mandates that no state shall make or enforce any law that abridges the privileges or immunities of the citizens of the United States or deprive any person of life, liberty, or property without due process of the law. Each State and the Federal government has a police power to enact health laws regarding lockdowns, quarantines and mandatory vaccination. Under constitutional scrutiny analysis, legislation under the police power must be rationally related, which means it must have a substantial relationship to the legislative objective, and must not be unreasonable, arbitrary or capricious.
But the government’s police power also must balance against each individual’s right to self-autonomy such as the right to abortion, contraception and freedom from involuntary medical procedures. We as individuals have a right to protect our bodies against intrusion by the government. However, this inalienable right must be balanced against our collective rights, such that your right to self-autonomy must not also harm your fellow Americans’ right to the same autonomy. Hence, we confront the delicate balancing act that we now face regarding the Covid-19 pandemic and mandatory vaccinations through employment.
According to a New York Times article on January 14, 2021, “the government is not requiring people to take Covid-19 vaccines, but it has a long history of permitting such mandates. In 1905, for example, the Supreme Court upheld [Jacobson v. Commonwealth of Massachusetts] the right of authorities to require smallpox vaccinations. Many hospitals require some staff to get vaccinated against the flu or hepatitis B. Children must get certain vaccines to be enrolled in school.” By the way, history has demonstrated that mandatory vaccination led to the complete elimination of the smallpox virus, only after it infected 300 million people.
Using the Covid-19 pandemic as the present backdrop, in 1905 the Supreme Court in Jacobson, which is still good law, eerily held the following. But first, I quote the question presented to the Court, “[i]s the statute, so construed, therefore, inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the state?” The Court answered the question by holding the state could exercise its’ police power to require mandatory vaccination against smallpox:
“The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman [person] to care for his [their] own body and health in such way as to him [everyone] seems best; and that the exception of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his [their] person. But 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 restrain. 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. Society based on the rule that each one is a law unto himself [themselves] would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his [their] own, whether in respect of his [their] person or his [their] property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state…”
On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance supporting mandatory vaccination by employers, subject to some exceptions regarding disability, genetic privacy and religious exemption.
“If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.” (EEOC Guidance on Covid-19 Vaccinations)
Please see items K.6 and K.7 in the EEOC Guidance regarding important exceptions to mandatory vaccination due to existing disability and religious observance grounds. The guidance also explains that mandatory vaccination programs instituted by employers must not ask questions that impermissibly seek employee medical information. According to the EEOC, the mandatory vaccination is not a medical procedure and thus is permissible.
But what becomes of this state power now entrusted upon private employers and the role of our liberty interest when employers mandate employees to vaccinate. Is our liberty interest invaded? Is the state police power operating through the hands of the employer? Can you sue your employer on constitutional grounds? I will endeavor to say that it is a close question of law and preferred that the federal government does not lean so heavily on us through such a vital means of our individual financial situations, aka our jobs. Please note, there exists no federal legislation here mandating vaccination, but only an agency guidance, which only garners judicial deferential treatment as the EEOC is one of several federal agencies charged with regulating workplace rights. The EEOC’s state action touches too closely for my own comfort level. But like smallpox, Covid-19 has wreaked havoc and killed thousands and we can all unanimously agree the government, as in a time of war, must intervene to protect us against this deadly virus, even if it means jeopardizing our individual liberty interests. Covid-19 will not go away and I am sure the EEOC and future legislative bodies are cognizant of our individual liberty interests and desire not to trample them so haphazardly, which would not pass constitutional muster. In the end, like smallpox, Covid-19 must be eradicated so you and I can return to the normal we all took for granted before this historic episode began.
Obviously, we are at threshold of this legal analysis regarding employer mandated vaccination, not the end. The EEOC guidance is just that guidance, not law and not codified regulation of a federal agency. We need more time and further factual development to determine if state police power is currently operational and then is such power infringing upon our liberty interests and having a significant resulting injury to many.
If you would like more information about this topic, please contact Carey & Associates, P.C. at www.capclaw.com or send an email to email@example.com. Thank you!