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COVID-19 Vaccinations in the Local Government Workplace

October 12, 2020 by Flannary Collins
Category: Personnel , COVID-19

COVID-19 Vaccinations in the Local Government Workplace

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 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 a qualified “yes,” it is important to note that no federal agency has issued guidance yet on employer-mandated COVID-19 vaccine programs. And, as explored in this USA Today article, whether mandatory vaccines make sense in all places of employment or just those that are high risk is a legitimate question, as is the question of whether requiring mandatory face masks at all times may be a viable alternative.

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 2009, in response to the Novel H1N1 Influenza A pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) developed the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance; and it has been partially updated to address COVID-19. The ADA primarily comes into play with respect to the requirement that employers provide reasonable accommodation for individuals with disabilities. The EEOC guidance addresses this in the context of mandatory influenza vaccine programs, indicating that an employer must allow employees with an ADA-covered disability preventing them from taking the vaccine to opt out, unless this would pose an undue hardship to the employer (e.g., significant difficulty or expense).

Although the EEOC has not addressed the COVID-19 vaccine (noting that “[a]s of the date this document is being issued, there is no vaccine available for COVID-19”), a similar opt-out accommodation would likely need to be provided to those individuals unable to take a COVID-19 vaccine due to an ADA-covered disability. Notably, the EEOC has identified COVID-19 as meeting the ADA’s “direct threat standard,” which gives employers more leeway with implementing certain medical protocols and standards, so there may be fewer medical exceptions for a COVID-19 vaccine than for other vaccines. Two helpful articles from the National Law Review explore these issues in greater detail: The COVID-19 Vaccine: Now Is Time for Employers to Plan for Whether They Can, and Should, Require Employees to Be Vaccinated (August 28, 2020) and Mandatory COVID-19 Vaccination: Is It Legal and Is it Right for Your Workplace (September 4, 2020).

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. 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 (1st Amendment) — apply only to state action. See Shelley v. Kraemer; Grosjean 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 (1920s mandatory vaccination program for school children in San Antonio, Texas, 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 and Additional Resources

The issue of employer-mandated COVID-19 vaccination programs (and the various accommodations employers must legally provide workers) will continue to evolve and is sure to be addressed in guidance issued by federal government as well as guidance from the State of Washington. Of course, MRSC will continue to follow this issue and update our own guidance periodically.

Additional resources the reader may find helpful are included below.

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.

VIEW ALL POSTS BY Flannary Collins


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