Can an employer mandate their employees to take the COVID-19 vaccine?
As establishments open up and folks head back to work, many find themselves navigating new rules, regulations and even mandates in doing so. One area in particular that people are curious about, is regarding vaccinations and if employers can mandate employees to get the COVID19 vaccine.
Generally speaking, the consensus is YES an employer can mandate vaccines to its employees. However, if the vaccination is required in a workplace, the employer has to “reasonably accommodate” employees who have sincerely held religious beliefs/practices or disabilities. This is on the basis of ADA, Title VII, and FEHA compliance. That said, the ADA allows an employer to have a qualification standard that would allow them to ensure certain accommodations are made by those select employees so they “shall not pose a threat to the health and safety” of other individuals in the workplace, such as having them work remotely.
If the employee does NOT have a refusal reason based on a disability or sincerely held religious belief, then the employer is NOT legally required to reasonably accommodate the employee, and the employee may be terminated because of their refusal to get vaccinated.
Now, those are the general rules regarding mandating vaccines in a workplace. When it comes to the COVID19 vaccine specifically, there are a few other factors at play that in fact make it much harder for an employer to mandate the COVID vaccine amongst its employees.
Building on the two reasons above (religion and disability), the third reason an employee can refuse the vaccine is on the basis of the vaccine being distributed under an Emergency Use Authorization (EUA), which is the indeed the case for the COVID vaccines.
What is an EUA? According to the FDA website here, “Emergency Use Authorization (EUA) is a mechanism to facilitate the availability and use of medical countermeasures, including vaccines, during public health emergencies, such as the current COVID-19 pandemic. Under an EUA the FDA may allow the use of unapproved medical products, or unapproved uses of approved medical products in an emergency to diagnose, treat, or prevent serious or life-threatening diseases or conditions when certain statutory criteria have been met, including that there are no adequate, approved, and available alternatives.
For an EUA to be issued for a vaccine, for which there is adequate manufacturing information to ensure quality and consistency, FDA must determine that the known and potential benefits outweigh the known and potential risks of the vaccine.”
Per the Food, Drug, & Cosmetic Act, when it comes to EUAs, the FDA has an obligation to:
[E]nsure that recipients of the vaccine under an EUA are informed […] that the FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.[1]
This presents a new challenge for the courts to navigate and is actually the basis for a lawsuit that is currently ongoing on in New Mexico. The case, Legaretta v. Macias, No. 21-CV-179 MV/GBW, 2021 WL 833390, involves a correctional officer who received a letter of repremand after refusing to take the COVID19 vaccine after a department memo stated the vaccination is a requirement and a condition of ongoing employment. While litigation is still ongoing, the outcome will shed some light on this issue moving forward.
The last layer to consider in this analysis is whether the employee is unionized or not. For unionized employees, employees being able to refuse mandatory vaccines would depend almost entirely on the bargaining agreement, or Memorandum of Understanding (MOU), and what exactly that says. For example, if the union agreed during collective bargaining, then the employer could indeed enforce a vaccine mandate.
It also depends on whether or not the vaccination mandate is outside the scope of representation or subject to the emergency exception under the Meyers-Milias-Brown Act. While these matters have not yet been settled, the main takeaway is that it has to be done in conjunction with union representation and management. Notice should be given and there should be ample opportunities to bargain over the issue.
Goyette & Associates has decades of experience with labor and employment law in California. The situation at hand is rapidly evolving, so please check back for updates and additional or subsequent posts regarding mandated vaccinations and other COVID19 related employment and labor issues.
If you have any questions or comments, or are in need of representation, please contact Goyette & Associates at [email protected] or at (916) 851-1900.
[1] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=, K.4