By: Caroline Foster
With the first mandatory COVID-19 vaccination case being filed on March 2, 2021, by a Dona Ana County, N.M. detention officer, the court will have to decide if employers can legally enforce employees to receive the vaccination. There is still so much uncertainty surrounding the vaccine and possible side effects, not to mention that it is still not licensed, creating ambiguity as to the constitutionality of requiring vaccination before employees can return to work.
Last month, the County Manager of Dona Ana County mandated COVID vaccination of all county‐employed first responders, including sheriff’s deputies, firefighters, and detention officers. Issac Legaretta, an N.M. detention officer, claims he was fired for refusing to receive the first dose of the mRNA vaccine. He argues that the Centers for Disease Control and Prevention’s (CDC) advisory committee stated that emergency use authorization vaccines should not be mandated. In addition, Legaretta argues federal law protects the right of patients to refuse administration of any unapproved product, claiming that emergency use authorization is differentiated from formal approval due to the vaccine not yet being licensed.
On the other hand, the County Manager’s office argues that absent special working arrangements made for those refusing vaccination, “being vaccinated is a requirement and a condition of on‐going employment with the County due to the significant health and safety risks posed by contracting or spreading COVID-19.”
Ultimately, an employer can require vaccination if an employee wants to continue their employment. Due to employment in the United States generally being “at will,” employers can set working conditions, including conditions related to health and safety, with limited restrictions. The restrictions recognized “generally are tied to the federal Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. If employees have medical reasons or sincerely held religious beliefs that prevent them from taking a potential coronavirus vaccine, employers could be legally required to give the workers some reasonable alternative to continue to work.” Some of these alternatives include “[wearing a] mask … working from home, or … working separately from other people,” so long as the accommodations do not cause “undue hardship” for the employer.
The Equal Employment Opportunity Commission (EEOC) confirmed that a COVID vaccination requirement by itself would not violate the ADA. The ADA prohibits employers from conducting some types of medical examinations. According to the EEOC, “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” Thus, the employee must have a disability that makes it so they cannot receive the vaccine if they want to be exempted under the ADA.
However, the EEOC recognizes that “the component should provide alternatives, such as telework, for employees who cannot receive the vaccine due to personal or health reasons. The employer should also be cautious when mandating vaccination, due to potential tort claims arising out of any employees who suffer health complications from the vaccination. While a mandatory vaccination policy is lawful, there are many risks that accompany such mandatory programs. As an alternative for the time being, components should strongly consider policies that encourage vaccination and continue to consider alternative work options for unvaccinated employees.”
The landmark case of Jacobson v. Massachusetts established that “a state may require healthy adults to accept an effective vaccination when an existing epidemic endangers a community’s population.” However, the state is not permitted to forcibly vaccinate or medicate anyone, with the Supreme Court in Jacobson allowing the State to issue a fine for denying vaccination. Further, “while organizations are certainly free to encourage their employees, students, and other members to be vaccinated, federal law provides that, at least until the vaccine is licensed, individuals must have the option to accept or decline to be vaccinated.”
Despite the Food and Drug Administration (FDA) granting emergency use authorizations for the Pfizer/BioNTech and Moderna vaccines in December 2020, the licensing of these vaccines is still underway and the process is designed to last for two more years in order to collect adequate data to determine if these vaccines are safe and effective. The emergency use authorization of medical products requires the FDA to “ensure that recipients are informed to the extent practicable given the applicable circumstances … That they have the option to accept or refuse the [emergency use authorization] product …”
As of now, only 0.5% of companies mandate coronavirus vaccination for all employees, and only 6% plan to mandate the vaccine once vaccines are readily available and/or fully approved by the FDA. While the percentage of companies that currently mandate the vaccine is low, under the EEOC’s interpretation only those who refuse to get the vaccine for religious or disability reasons can potentially receive accommodations, ignoring employees that do not want the vaccine due to the lack of a license, possible side effects, and any other relevant reason.
With the vaccine being created in under a year, there is still so much unknown about the virus, and if the current vaccines are the most effective. While there is an importance to create herd immunity, companies should not be allowed to force their employees to get a vaccine that is not licensed if they want to continue employment.
Further, those who choose not to receive the vaccine are the individuals at higher risk for contracting the virus, not those who choose to get vaccinated, making it their own choice to be more susceptible to contracting the virus. Instead of employers attempting to mandate the vaccine and potentially expose themselves to liability, companies should encourage vaccinations through internal communications, educational events, and other measures to urge employees to be vaccinated. They can take these measures so long as: (1) they are not coercive, (2) the company allows the decision regarding vaccination to be voluntary, and (3) the measures comply with the requirements of emergency use authorization and related regulations for these products.
Student Bio: Caroline Foster is a second-year law student at Suffolk University Law School. She currently serves as a staff member on the Journal of High Technology Law. Caroline received her Bachelor of the Arts from Bucknell University, double majoring in English Literature and Philosophy.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
