By David E. Mastagni, David Demurjian and Taylor Davies-Mahaffey

State and Local Governments Can Mandate Vaccinations

Over 100 years ago, the Supreme Court decided that states can mandate that their citizens get vaccinated. In Jacobson v. Commonwealth of Massachusetts (1905) 197 U.S. 11, the court upheld a local law in Cambridge, Massachusetts, requiring that inhabitants receive the smallpox vaccine. The court’s ruling relied on the principles that an individual’s right to liberty and bodily autonomy is not absolute, and that states have the authority to take actions necessary to protect the health and well-being of their citizens (commonly referred to as states’ “police powers”).

The Supreme Court did not revisit government-mandated vaccinations again until 1922, in Zucht v. King (1922) 260 U.S. 174. The Zucht court held that mandating vaccines for only one group of people (in this case, schoolchildren) did not violate individuals’ 14th Amendment rights to due process or equal protection. This same logic would likely apply to a mandate that first responders or public safety officers be vaccinated, even if the same requirement is not applied to the general public.

More recently, multiple California appellate courts have upheld Jacobson and Zucht, ruling that when it comes to mandatory vaccinations, the need for public safety outweighs individuals’ rights to privacy or bodily autonomy. In Brown v. Smith (2018) 24 Cal.App.5th 1135 and Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, California appellate courts upheld Senate Bill No. 277, which repealed the personal belief exemption to California’s immunization requirements for schoolchildren. Thus, the courts limited the exemptions available (once full FDA approval is received) to: 1) a sincerely held religious belief, practice or observation; or 2) a medical accommodation.

There has been one court decision dealing with mandatory COVID-19 vaccines. In Bridges v. Houston Methodist Hospital (S.D. Tex., June 12, 2021, No. CV H-21-1774) 2021 WL 2399994, Houston Methodist Hospital implemented a policy requiring staff to be vaccinated or face termination. A number of employees sued, claiming wrongful termination after they refused to be vaccinated. The court cited Jacobson as proof that an employer can mandate vaccines. The court also dismissed the employees’ arguments that the COVID-19 vaccine was distinguishable because it had only received “emergency” approval. Ultimately, the court concluded: “Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else… Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain” (Id. at p. *2). It is important to note that this case dealt with a private employer. However, the rationale is applicable to public employers and employees.

In another pending federal lawsuit, correctional employees brought wrongful termination claims in challenging a directive requiring first responders to be vaccinated as a condition of employment unless a reasonable accommodation is approved (Legarreta v. Macias, Case 2:21-cv-00179-MV-GBW [D.N.M., filed Feb. 28, 2021]). The court denied the employees’ request for a restraining order on March 4, 2021, and the defendants have filed a motion to dismiss the case for failure to state a claim and based on qualified immunity. The motion to dismiss is fully briefed and a ruling could come as early as next week.

It is well-settled law that state and local governments — and, by extension, government employers — can mandate that citizens be vaccinated. Further, the court rulings to date that have applied these legal principles to mandatory COVID-19 vaccines have found in favor of the employer. However, this authority is not absolute. Government employers may still be required to make accommodations for individuals with sincere religious beliefs or medical conditions that make vaccination a risk. The exemptions are discussed further below.

Right to Bargain Over the Impacts and Effects of Mandatory Vaccinations

While mandating vaccination is generally legal, the impacts and effects of such a decision fall within the scope of bargaining. PERB recently held that the decision to adopt an influenza vaccination policy was outside the scope of representation because the need to protect public health was not amenable to collective bargaining or, alternatively, outweighed the benefits of bargaining over the policy. However, the University of California’s implementation of the vaccination policy constituted a unilateral change, in violation of HEERA, because the university was not privileged to implement the policy before completing negotiations over its effects (Regents of the University of California [2021] PERB Decision No. 2783-H). The university had not met and conferred in good faith before implementation of the policy.

Labor leaders should demand to bargain over the impacts and effects of any vaccination policy. And, if the failure to get vaccinated could lead to discipline, the policy itself may be subject to decision bargaining. Employers must provide notice and opportunity to meet and confer prior to mandating vaccines. Employers can offer employees incentives to get vaccines, but they cannot be so large that it is coercive.

Right to Refuse Vaccination

A. Food, Drug and Cosmetic Act Under the Emergency Use Authorization (EUA)

The EUA requires employees be informed that they have the right to refuse vaccination and must be given a fact sheet listing the health consequences of refusal, the alternatives to the product that are available and their benefits and risks, among other notices. However, the Acting Assistant Attorney General Office of Legal Counsel (OLC) refused to read this language as prohibiting public and private entities from requiring individuals to be vaccinated.

On July 6, 2021, the OLC issued a slip opinion addressing whether Section 564 of the Food, Drug and Cosmetic Act prohibits entities from requiring the use of a vaccine subject to an EUA. The slip opinion is not binding legal authority, but it delivers a strong opinion favoring mandatory vaccines. Ultimately, the OLC concluded that Section 564 does not prohibit public or private entities from imposing vaccination requirements, even when the only vaccines are those authorized under EUAs.

The argument that the vaccines are “experimental” because they only have emergency authorization, and therefore cannot be mandated, is weak. EUA means the shot is safe enough for the public. Further CDC has also said vaccines approved under the EUA are “safe” and “effective.”

A least one court has already rejected the claim “that the injection requirement is forcing its employees to participate in a human trial because no currently-available vaccine has been fully approved by the Food and Drug Administration” (Bridges v. Houston Methodist Hospital [S.D. Tex., June 12, 2021, No. CV H-21-1774] 2021 WL 2399994, at *2). The court explained, “Equating the injection requirement to medical experimentation in concentration camps is reprehensible. Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and in many cases, death. … [the employee] can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else. … If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain” (Id.).

Moreover, we expect the FDA to issue full approval in the coming months. Therefore, this basis for an exemption is not likely to prevail. (See Legarreta v. Macias, No. 21-CV-179 MV/GBW, 2021 WL 833390, at *1 [D.N.M. Mar. 4, 2021]; Bridges v. Houston Methodist Hosp., No. 4:21-cv-01774, 2021 WL 2399994, at *1–2 [S.D. Tex. June 12, 2021].) (Update: The FDA approved the Pfizer-BioNTech vaccine on August 23.)

B. Medical Accommodations Under the ADA and FEHA

An individual who suffers adverse medical consequences — such as an allergic reaction — to vaccinations may be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.) and the California Fair Employment and Housing Act (FEHA) (Gov. Code § 12900 et seq.).

The ADA and FEHA require that employers provide a reasonable accommodation for an employee’s disability. Such disability may include an inability to be vaccinated due to a serious medical condition. The employee must first put their employer on notice and request accommodation to begin an interactive process. In addition, employees must put forward medical documentation to substantiate their claim of a disability.

Moderate reactions to vaccines are probably not legally sufficient. For example, in Hustvet v. Allina Health System (8th Cir. 2018) 910 F.3d 399, 411, the Eighth Circuit affirmed a judgment against an employee who had “never been hospitalized due to an allergic or chemical reaction [from a vaccine], never seen an allergy specialist, … [or] ever sought any significant medical attention when experiencing a chemical sensitivity, taken prescription medication because of a serious reaction, or had to leave work early because of a reaction.” Therefore, this claim will only be available to individuals who suffer serious, documented medical consequences from being vaccinated.

C. Religious Accommodations Under Title VII

Individuals with sincerely held religious objections to the COVID-19 vaccine may also seek a religious accommodation to a vaccination requirement under Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … religion” (42 U.S.C. § 2000e-2[a][1]).

An employer must make reasonable accommodations for employees’ sincerely held religious beliefs “unless an employer demonstrates that he is unable to reasonably accommodate… without undue hardship on the conduct of the employer’s business” (42 U.S.C. § 2000e[j]). Thus, an employer is obligated to try to reasonably accommodate an employee’s religious beliefs to the extent it does not cause an undue hardship on the business, and failure to do so violates Title VII. This does not mean that the employer is required to offer an employee his or her preferred accommodation. Rather, the accommodation offered simply must be reasonable (Bruff v. N. Miss. Health Servs., Inc. [5th Cir. 2001] 244 F.3d 495, 501).

In conclusion, public employers will generally be able to mandate that employees receive vaccinations if they deem it necessary for public health and safety. Individuals for whom vaccination poses a serious health risk should be able to obtain an exemption under the ADA/FEHA. Further, individuals who hold sincere religious objections to vaccinations may be able to obtain a reasonable accommodation from their departments. Lastly, at a minimum, the impacts and effects of such policies are subject to bargaining, including the consequences of refusal.