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COVID-19 Vaccinations in the Local Government Workplace


January 4, 2021 by Flannary Collins
Category: Personnel Policies , COVID-19

COVID-19 Vaccinations in the Local Government Workplace

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 the workplace is on everyone’s minds, and in thinking about that return, one issue being debated is the legality of requiring employees to take a COVID-19 vaccine as a condition to returning to work. We know employees can be required to take a COVID-19 test (but not a COVID-19 antibody test) in order to return to work, but what about vaccines? Although the answer appears to be “yes,” local government employers need to be aware of the laws that may impact mandatory vaccination policies, including the Americans with Disabilities Act and the Civil Rights Act of 1964.

Thus, before adoption of a mandatory vaccination program a local government employer needs to do their due diligence on researching the issues. This blog article sets forth some of the main legal issues to consider.

Medical Accommodations Under the Americans with Disabilities Act.

In terms of mandatory vaccination programs, the Americans with Disabilities Act (ADA) primarily comes into play with respect to: (1) an employer’s pre-screening questions asked prior to administering a vaccine, which may elicit information about a disability; (2) ADA-covered disability reasons that may prevent a person from receiving a vaccine; and (3) providing a reasonable accommodation for employees with ADA-covered disabilities that prevent them from taking a vaccine.

The U.S. Equal Employment Opportunity Commission (EEOC) recently released detailed guidance about the ADA and COVID-19 mandatory vaccination programs. Highlights from the EEOC guidance are as follows:

  • The ADA permits employers to adopt qualification standards — such as a mandatory vaccination program — that prohibit employees from posing a direct threat to the health and safety of others in the workplace. In this circumstance, an unvaccinated employee could pose a direct threat to others in the workplace.
  • A mandatory vaccination program may result in screening out or tending to screen out individuals with disabilities from employment because their disability prevents them from being vaccinated, and therefore, from being employed. If this occurs the employer must show an unvaccinated employee would pose a “direct threat” to the health or safety of the employee or to others, one that cannot be eliminated or reduced by reasonable accommodation.
  • If an unvaccinated employee does pose a direct threat, the employer must try to provide a reasonable accommodation for the unvaccinated employee, such as telework, so long as the accommodation does not pose an undue hardship to the employer (e.g., significant difficulty or expense).
  • Prior to adopting a policy on vaccinations, local government employers should review the EEOC guidance in full as well as Summit Law Group’s Mandatory COVID-19 Vaccination Policy Guidance for Washington Employers, which explores the direct threat and reasonable accommodation issues in greater detail.

Religious Exemptions Under Title VII of the Civil Rights Act of 1964

A second issue to consider is whether Title VII of the Civil Rights Act of 1964 requires an employer to grant a religious exemption. Under Title VII of the Act, a sincerely held religious belief, practice, or observance can exempt an employee from a mandatory vaccination policy unless it imposes an undue hardship on the employer. Religious accommodations are subject to a lesser standard than medical accommodations, although the EEOC guidance recommends the employer assume an employee’s request is based on a sincerely held religious belief. The employer must provide religious accommodation — in this case, opting out of a mandatory vaccine — only if the accommodation does not pose even a de minimis burden on the employer.

Constitutional Protections

The main constitutional arguments against government-mandated vaccination polices — e.g., substantive due process clause (14th Amendment), religious freedom clause (First Amendment) — apply only to state action (see Shelley v. KraemerGrosjean v. American Press Co), but even state-mandated vaccination policies have been upheld. In the seminal case from 1905, Jacobson v. Massachusetts, the U.S. Supreme Court upheld a Massachusetts state law that made smallpox vaccines compulsory. The court held that mandatory vaccines are within the state’s police power because the state’s interest in protecting public health and safety outweighed an individual’s constitutional rights to liberty during the smallpox epidemic The court also held this authority may be delegated to a local body.

Washington State has used its police power in requiring vaccinations for children attending schools (see Chapter 28A.210 RCW), although it recognizes medical and religious exemptions. While this Washington State statute has not been subject to a constitutional challenge, similar school vaccination mandates in other states have been upheld as a valid exercise of police power (see Zucht v. King; a 1920s mandatory vaccination program for school children in San Antonio, Texas, was upheld as a constitutional exercise of city police power). Last year, in response to the measles outbreak, the State of New York eliminated the religious exemption for vaccination for school children; this also survived legal challenges.

Conclusion

While not explored in this blog, other issues agencies should review are whether employees must be paid for the time it takes to get a vaccine (recommended) and whether a mandatory vaccination policy are a mandatory subject of bargaining (also recommended); these matters and more are analyzed in Summit’s Law’s Mandatory COVID-19 Vaccination Policy Guidance for Washington Employers.

Vaccinations will become more readily available to the general public in 2021. And with those vaccinations the number of COVID-19 cases in Washington State should decline to the point where workplaces can fully reopen. Before fully reopening, local governments should put in place a clear vaccination policy so employees understand what is expected of them once they return to the workplace. MRSC will continue to follow this issue and update our own guidance periodically, including posting any employee vaccination policies on our COVID-19 Operations and Personnel Issues webpage.


MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Flannary Collins

Flannary Collins is the Managing Attorney for MRSC. Flannary first joined MRSC as a legal consultant in August 2013 after serving as assistant city attorney for the city of Shoreline where she advised all city departments on a wide range of issues.

At MRSC, Flannary enjoys providing legal guidance to municipalities on all municipal issues, including the OPMA, PRA, and personnel. She also serves on the WSAMA Board of Directors as Secretary-Treasurer.

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