The long-anticipated arrival of vaccines has moved the COVID-19 pandemic into a new chapter. The phased rollout of vaccines is expected to take months. As adoption of the vaccine becomes widespread, society will hopefully return to normalcy, including returning to in-person work.
Public sector employers in California are beginning to study their policy positions regarding vaccination among their employees. Sufficiently widespread adoption of the vaccine by employees will be necessary to achieve public health objectives. Ideally, vaccination targets can be reached through voluntary acceptance.
In the event that voluntary programs are insufficient to protect public employees and the community from further spread of the virus, agencies may need to adopt policies requiring their employees to be vaccinated. Mandatory vaccination raises a number of important considerations under state and federal law.
- Authority to mandate vaccines under federal law
Federal regulations promulgated under the Americans with Disabilities Act (ADA) provide the relevant framework for evaluating the necessity of mandatory vaccination of all employees or a critical subset of those employees. The relevant section provides four elements for consideration:
- The duration of risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will occur, and
- The imminence of the potential harm.
In weighing these elements, employers can draw upon their experience over the course of the pandemic. Agencies will need to account for the effectiveness of alternative safety protocols, including social distancing measures and personal protective equipment (PPE). The analysis also must include due consideration for forecasted transmission rates in specific populations, such as within prisons.
- Mandatory vaccines and California employment bargaining rights
Under California law, public employers also must give due consideration to the collective bargaining rights of employees. State law may grant agencies sufficient management authority to require vaccines as necessary for sustaining public safety. However, these caveats should be kept in mind:
- A mandate impacts continuity of employment and raises the potential for adverse employment consequences of refusing to take the vaccine.
- A mandated injected vaccine is a highly personal employment condition that implicates the customary right of individuals to make their own health decisions.
As of this writing the vaccine rollout may be sufficiently slow to allow time for employers to initiate a meet and confer process. We recommend agencies treat the question of vaccines as within the scope of employee bargaining rights. Through the bargaining process, agencies and their employees can work through concerns and considerations, such as accommodation options, in advance of any mandate becoming a necessity.
- Religious and medical objections to vaccinations
Should agency management conclude that a mandatory vaccine program is necessary, even if it does so with the agreement of the union the agency must be prepared to address individual objections.
Faith-based or religious objections to the vaccine can be anticipated. State and federal law require an employer to provide reasonable accommodation to the religious beliefs and exercise of an employee. When a religious objection is raised, our recommendation is to objectively assess the request with the assistance of legal counsel. If possible, make reasonable inquires of individuals who can speak with authority on the question of whether the objection has grounds in the individual’s faith.
Employees also may raise objections on medical grounds, asserting that a condition or disability prevents them from taking the vaccine. An employee who claims a medical exemption can be required to provide documentation from a licensed health care provider attesting to the existence of a medical condition which contraindicates vaccination.
Any objection on religious or medical grounds must be evaluated carefully and conscientiously on a case-by-case basis. In some circumstances, reasonable and temporary accommodations may be readily available.
Mandatory vaccinations raise a host of complex considerations
Jones & Mayer has prepared a detailed memorandum on the topic of mandatory vaccinations, which is available by clicking here. The memorandum goes into greater detail on each of the topics outlined above, and explores additional topics not covered here.
Should they be necessary, mandatory vaccination policies will involve balancing numerous legal principles. We recommend agencies consult with their attorneys to begin evaluating the measures that might be required should mandates be needed.
If you have questions about vaccination requirements for your agency’s employees, please contact Paul Coble at (916) 771-0635 or Richard Lucero at (714) 446–1400 or via email at prc@jones-mayer.com or ral@jones-mayer.com.