January 4, 2021 by Flannary Collins
Category: Personnel Policy
Editor’s note: This is an updated version of a blog post that was originally published in October 2020.
Planning for an eventual full return to work is on everyone’s lips and when one thinks about that return one of the debates is the legality that employees must take a COVID-19 vaccine as a prerequisite for returning to work. We know that employees may need to take a COVID-19 test (but not a COVID-19 antibody test) to get back to work. But what about vaccines? Although the answer appears to be “yes”, local government employers need to know the laws that may affect mandatory vaccination policies, including the Disabled Americans Act and the Civil Rights Act of 1964.
Therefore, a local government employer must exercise diligence in investigating the problems before adopting a mandatory vaccination program. This blog article covers some of the most important legal issues to consider.
Medical accommodation under the Disabled Americans Act.
With respect to mandatory vaccination programs, the Americans With Disabilities Act (ADA) comes into play primarily in relation to: (1) Pre-screening employer’s questions that are asked prior to a vaccine being given that may elicit information about a disability ; (2) ADA-covered disability reasons that may prevent a person from receiving a vaccine; and (3) provide reasonable accommodation for employees with ADA-covered disabilities that prevent them from taking a vaccine.
The US Equal Employment Opportunity Commission (EEOC) recently published detailed guidance on the mandatory ADA and COVID-19 vaccination programs. The highlights of the EEOC guidelines are as follows:
- The ADA allows employers to adopt qualification standards – such as a mandatory vaccination program – that prohibit workers from posing a direct threat to the health and safety of others in the workplace. In these circumstances, an unvaccinated employee can pose a direct threat to others in the workplace.
- A mandatory vaccination program can result in people with disabilities being excluded from employment, or prone to being excluded, as their disability prevents them from being vaccinated and therefore not employed. In this case, the employer must demonstrate that an unvaccinated worker poses a “direct threat” to the health or safety of the worker or others that reasonable precautions cannot eliminate or reduce.
- If an unvaccinated worker poses a direct threat, the employer must try to provide the unvaccinated worker with reasonable accommodation, e.g. B. teleworking, as long as the placement does not create an undue burden on the employer (e.g. significant difficulties or costs). .
- Before adopting a vaccination policy, local government employers should fully review the EEOC guidelines, as well as the Summit Law Group’s mandatory COVID-19 guidelines for Washington employers, which examine the direct threat and reasonable precautions.
Religious exemptions under Title VII of the Civil Rights Act of 1964
A second question to consider is whether Title VII of the Civil Rights Act of 1964 requires an employer to be granted religious exemption. Pursuant to Title VII of the Act, a sincere religious belief, practice, or compliance can exempt an employee from a mandatory vaccination policy unless it imposes undue hardship on the employer. Religious accommodation is of a lower standard than medical accommodation, although the EEOC guidelines recommend employers to assume that a worker’s request is based on a genuine religious belief. The employer only has to provide religious accommodation – in this case without a mandatory vaccine – if the accommodation does not even pose a de minimis burden for the employer.
defense of Constitution
The main constitutional arguments against government-mandated vaccination guidelines – e.g. B. the due process clause (14th amendment), the religious freedom clause (1st amendment) – only apply to state measures (see Shelley v. Kraemer; Grosjean v. American Press Co). But also state-prescribed vaccination guidelines were observed. In the landmark 1905 Jacobson v Massachusetts case, the US Supreme Court upheld a Massachusetts state law that made smallpox vaccines mandatory. The court ruled that mandatory vaccines were the responsibility of the state police force as the state’s interest in protecting public health and safety outweighed an individual’s constitutional freedoms during the smallpox epidemic. The court also considered this power to be delegated to a local authority.
Washington State has used its police force to require vaccinations for school children (see Chapter 28A.210 RCW), although it recognizes medical and religious exceptions. While this Washington state law was not subject to constitutional challenge, similar school vaccination mandates in other states have been confirmed as valid police acts (see Breeding v. King; A Mandatory School Childhood Immunization Program from the 1920s in San Antonio). Texas, was vindicated as a constitutional exercise of power by the City Police). Last year, in response to the measles outbreak, New York State lifted the religious exemption for vaccinating school children. This also survived legal challenges.
While this blog is not investigating this, agencies should consider whether employees need to be paid for the time it takes to get a vaccine (recommended) and whether a mandatory vaccination policy is a mandatory item of negotiation (also recommended) . These questions and more are analyzed in the mandatory COVID-19 guidelines of vaccination policy for Washington employers.
Vaccinations will be more accessible to the public in 2021. With these vaccinations, the number of COVID-19 cases in Washington state should fall enough that workplaces can be fully reopened. Before fully reopening, local governments should put in place a clear vaccination policy so employees understand what will be expected of them when they return to work. MRSC will continue to monitor this issue and will regularly update our own guidelines, including posting employee vaccination guidelines on our COVID-19 website for operations and human resources.
MRSC is a private, not-for-profit organization serving local government in Washington state. Eligible government agencies in Washington state can use our free one-on-one Ask MRSC service to get answers to legal, political, or financial questions.
About Flannary Collins
Flannary Collins is the executive attorney for MRSC. Flannary first joined MRSC as a legal advisor in August 2013 after serving as assistant city attorney for Shoreline City, where she advised all city departments on a variety of matters.
At MRSC, Flannary is happy to provide legal advice to local authorities on all community issues, including OPMA, PRA and HR. She is also a member of the WSAMA board of directors as secretary and treasurer.
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