Can An Employer Make It Mandatory For Its Employees To Be Vaccinated?

CAN AN EMPLOYER MAKE IT MANDATORY FOR ITS EMPLOYEES TO BE VACCINATED?

I. Introduction

II. Disclaimer

III. History of the Law and Vaccines

A. Jaccobson v. Moss (1905 Supreme Court)

1. 1. Police Power
   2. Distinction: Employers have no police power, but they can and must implement law where the government exercises its police power

B. NYS Public Health Law

1. 1. 2164—attending school
   2. 228, 2800—hospitals and health care facilities

IV. But What of COVID?

A. EEOC—May 28, 2021 issued “Technical Assistance—Questions and Answer,”—38 pages long with 13 pages dedicated to vaccination. Press takeaway: EEOC permits mandate for employer to require vaccines.

B. Only Guidance—not binding on employers or courts.

C. Bridges v. Houston Methodist (S.D.Tx.)

1. 1. Primarily decided under state law but—bottom line—employees can be terminated if they refuse to be vaccinated.
   2. Court dealt with Emergency Use Authorization (“EUA”) issue.
   3. When dealing with a drug without full approval by the government and only with an EUA:

a. Secretary of Department of Health:

i. Must insure recipient under potential benefit and risks of use; and

ii. Provides the option to accept or refuse administration of the product

4. Court Held: Does not apply to private employers. Neither expands nor contracts the employer’s rights in an “at will” employment situation.

D. “AT WILL EMPLOYMENT”

E. SO WHAT DID THE EEOC ACTUALLY STATE?

1. 1. Just look at the title: “What You Should Know About COVID-19 and the ADA, The Rehabilitation Act and Other EEOC Laws.”
   2. So, the takeaway and headline might be true that the EEOC gave the go ahead. BUT DON’T FORGET the ADA and TITLE VII: religious freedom and pregnancy-related concerns.
   3. So what are the exceptions to the broad mandate that an employer can require its employees to get vaccinated?

a. ADA: “Reasonable accommodations” lengthy discussion involving what is the “disability?” What possible “reasonable accommodation” is available? Will it pose an undue hardship? AND WILL THE EMPLOYEE BE A “DIRECT THREAT”? More on that later.

b. Title VII: religious exemptions and pregnancy exemption. First, must be a “sincerely held” religious belief. We could talk for hours on what the courts look at to determine if the religious belief is sincerely held. Next, same analysis regarding reasonable accommodation under hardship. INDIVIDUAL ASSESSMENT AND DIRECT THREAT.

c. What is a “direct threat”?

i. Significant risk or substantial harm.

ii. That cannot be eliminated or reduced by reasonable accommodation.

iii. Factors to consider:

A. Duration of the risk

B. Nature and severity of potential harm

C. Likelihood harm will accrue

D. Imminence of harm

All are based on individualized assessment

SO, YOU MAY REQUIRE VACCINATION, BUT ONCE THE EMPLOYEE SAYS “NO” THE WORK STARTS.

V. New York State of Mind

A. Same analysis but:

1. 1. NY Human Rights Law offers broader protection.
   2. Applies to every New York employer as of February 20, 2020 no matter how many employees are employed.

VI. BONUS SECTION

A. Assembly Bill A11179—seeking to make vaccinations mandatory

B. Employer may give incentives but cannot be coercive

C. Prescreening for vaccination a “NO NO”

D. Employer can inquire and document vaccination status: BUT KEEP CONFIDENTIAL

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