Mandatory Vaccinations: PSLG Client Update August 1, 2021 Many public employers are exploring the idea of requiring public employees to provide proof of vaccination and, absent such proof, succumb to periodic COVID-19 testing. That possibility has raised a number of questions. What follows is general guidance, some of which repeats prior PSLG client updates. Please contact your PSLG lawyer with any specific questions.
Yes, subject to collective bargaining. Federal law allows for mandatory vaccinations. Note that some states, such as Oregon, have specific laws that may prohibit mandatory vaccinations for certain law enforcement, firefighter, and corrections employees.
Yes, subject to collective bargaining. Federal law allows for COVID-19 testing in the workplace. Such a mandate would likely require collective bargaining.
An employee should look to file a worker’s compensation claim, seek any COVID leave available through their employer, and, if needed, look to use their sick leave banks. Of note, a ripe area for bargaining is the availability of employer-sponsored COVID leave banks for vaccination side-effects if vaccinations are mandated.
Proof of vaccination provided by the public employee is medical information that must be kept confidential by the public employer under the Americans with Disabilities Act (ADA). Unless the public employer is a “covered entity” (e.g., health plans, healthcare provider), the federal Health Insurance Portability and Accountability Act (HIPAA) does not apply. An area for bargaining could be that the public employer simply verifies – but does not maintain – an employee’s proof of vaccination.
State law or local bargaining ordinances will dictate the scope of bargaining, which may vary widely. Some of the mandatory bargaining issues at play include:
No. The Supreme Court of the United States has upheld compulsory vaccination laws. Jacobson v. Massachusetts, 197 U.S. 11 (1905).
Yes, if the employee meets certain legal thresholds for establishing a religious belief or disability. Simply stating in a conclusory fashion that “my religious beliefs” or “my medical condition” gives me a pass from being vaccinated is insufficient under the law. Further, once that legal threshold is met, a public employer’s accommodation need only be “reasonable;” the employee is not entitled to his/her preferred accommodation. That means that a public employer could, for example, reassign an employee to a different position and/or require the employee to wear a mask. And a public employee who refuses those reasonable accommodations is subject to termination. E.g., Horvath v. City of Leander, 946 F.3d 787, 792 (5th Cir. 2020).
No. A recent federal court decision indicates that the emergency use status of COVID-19 vaccinations under FDA statutes does not preclude mandatory vaccination programs at work. Bridges v. Houston Methodist Hospital, Case No. 21-CV-01774 (S.D. Tex. 2021). Public Safety Labor Group
|