Legal and Practical Considerations for Mandating That Public Employees Obtain a COVID-19 Vaccination

12.17.2020

The federal government recently granted emergency use authorization (“EUA”) for the Pfizer-BioNTech COVID-19 vaccine to be distributed throughout the country. This momentous decision signals the beginning of a new stage in the country’s response to the COVID-19 global pandemic. The imminent distribution of COVID-19 vaccinations throughout California requires public employers, including cities, counties, housing authorities, transit agencies, water districts, and other special districts (“public employers”), to evaluate whether to require their employees to get vaccinated. This Alert shall consider the legal implications of a mandatory vaccination policy, as well as other important considerations bearing on such a policy for public employees.

Impact of Emergency Use Authorization on Mandatory Vaccination Policies

Vaccines typically go through a formal Food and Drug Administration (“FDA”) approval process before they can be used, but this approval process can be expedited during a time of emergency. As noted above, the FDA granted the first EUA to Pfizer-BioNTech for their COVID-19 vaccine. However, the federal regulations governing emergency use authorization for medical products may affect employers’ ability to mandate that employees obtain a COVID-19 vaccine. Specifically, federal regulations for EUA provide the government with the discretion to (among other things) require that individuals be told that they can refuse the use of a medical product, such as a vaccine.^[1] However, it is not certain whether these generally-applicable federal regulations would be interpreted or applied in the context of the present COVID-19 global pandemic to bar employers from requiring employees to obtain the COVID-19 vaccine, given the unprecedented threat to the public’s health and safety. Given the lack of clear authority on this issue, as well as the unique threats and challenges posed by the present pandemic, the federal government may issue subsequent guidance advising employers and the general public about the issue of vaccine mandates.

EEOC’s Consideration of Compulsory Vaccination Policy for H1N1

While this question may seem unprecedented, the Equal Employment Opportunity Commission (“EEOC”) considered a similar issue in 2009 during the spread of the H1N1 virus (commonly known as the “swine flu”). Like the current COVID-19 crisis, numerous public authorities considered the spread of the “swine flu” to constitute a “pandemic.” The EEOC issued guidance in 2009 concerning various pandemic-related issues affecting employees and the workplace, including accommodation issues and permissible screening measures.^[2]

While the EEOC did not expressly state that employers could generally impose mandatory vaccination policies in the context of the H1N1 pandemic, it noted that employees may be entitled to certain exemptions from such a mandatory policy due to a qualifying disability under the Americans with Disabilities Act (“ADA”), or due to sincerely-held religious beliefs and/or objections under federal (Title VII of the Civil Rights Act) or state (Fair Employment and Housing Act (“FEHA”)) law.

Exemptions for Mandatory COVID-19 Vaccinations

The EEOC recently confirmed that the COVID-19 vaccine raises the same accommodation obligations and issues under the ADA. On December 16, 2020, the EEOC updated its online FAQ page, and provided guidance on accommodation issues which is consistent with the direction provided in 2009 for the H1N1 virus. It is now certain that compulsory COVID-19 vaccinations must meet the basic requirements for the accommodation process under federal (ADA and Title VII) and state (FEHA) law. Specifically, mandatory vaccinations must: (1) be job-related and consistent with the public employer’s business necessity; (2) include exemptions for employees who are unable or unwilling to get vaccinated due to a qualifying disability or religious belief; and (3) involve an accommodation process for evaluating whether the employee can receive this exemption and continue working, without posing a threat to the health and safety of others or imposing an undue hardship on the public employer.

A. Job-Related and Consistent with Business Necessity

As with other accommodation issues, the “job-related and consistent with business necessity” standard can be satisfied when a public employer has a reasonable belief, based on objective evidence, that an employee will pose a “direct threat” (significant risk of substantial harm) to the health and safety of others individuals in the workplace.^[3] The EEOC and the Centers of Disease Control and Prevention (“CDC”) concluded on March 21, 2020 that the COVID-19 pandemic met the “direct threat” standard under the ADA.

B. Vaccination Exemptions for Medical and Religious Reasons and the Obligation to Provide Accommodations

As noted above, public employers cannot require employees with qualifying disabilities or sincerely-held religious beliefs to vaccinate, and must instead provide reasonable accommodations to their job functions. Public employers are not required to provide accommodations to qualified employees if the accommodation would endanger the health and safety of other employees in the workplace or cause an undue hardship for the public employer.

Assessing whether an accommodation causes an undue hardship requires a public employer to take into account the nature and cost of an accommodation, the resources available to the public employer, and the operations of the public employer. Examples of reasonable accommodations that can be provided to such employees include telework agreements, modified work schedules to avoid contact with non-vaccinated employees, and the use of personal protective equipment (to the extent possible). For a more detailed discussion on navigating the accommodations process amid the COVID-19 pandemic, please refer to our Firm’s prior Alert on the subject.

Other Considerations for Mandating COVID-19 Vaccinations

In addition to accommodation issues under federal and state law, there are other important considerations that public employers should also evaluate before imposing such a requirement. Among others, public employers should consider: (A) the impact of mandatory vaccination policies on workers’ compensation concerns; (B) how collective bargaining obligations affect such a policy; and (C) the practical and logistical components of a mandatory vaccination policy.

A. Workers’ Compensation Issues

While it may not be widespread in degree, there is some risk that certain public employees may have negative physiological reactions to a vaccine. In that event, an employee’s negative reaction to a mandatory vaccination could potentially lead to a workers’ compensation claim under California law. Public employers should evaluate the potential incidence of, and implications of such negative reactions, given that the recently-approved COVID-19 vaccine lacks a typical prolonged track record of use and known side effects to inform employers about the potential risks involved. Public employers should carefully review their current insurance policies in assessing this factor.

B. Collective Bargaining Obligations

Additionally, mandatory vaccination policies will likely trigger bargaining requests from union representatives of public employees. Under the Meyers-Milias-Brown Act^[4] (“MMBA”), public employers owe a duty to bargain about mandatory subjects of bargaining, as well as non-negotiable decisions which may have reasonably foreseeable effects on negotiable subjects. Given these general bargaining obligations, public employers risk violating the MMBA if they take unilateral action that would (i) change a matter within the scope of representation, or (ii) involve non-negotiable matters, yet affect negotiable subjects. Union representatives may argue that a mandatory vaccination policy itself involves a negotiable subject of bargaining. At a minimum, union representatives can be expected to argue that such a policy would affect numerous mandatory subjects of bargaining, and thus demand that public employers bargain before adopting such a policy.

While public employers can resort to several arguments to avoid such bargaining obligations, their force and support is unclear based on the unprecedented nature of the current global pandemic. Under MMBA precedent, a public employer can take unilateral action on a negotiable subject without first completing the meet and confer process if (1) an “actual emergency” exists, (2) there is not time for a public agency to engage in meaningful negotiations with its union, and (3) the emergency leaves no alternative to the action taken. However, this “emergency exception” is rarely granted by the Public Employment Relations Board (“PERB”), and it is uncertain if the present circumstances would justify public employers to impose mandatory vaccination requirements without first exhausting bargaining obligations.^[5] Even if a public employer could state a compelling argument on this ground, it would need to provide union representatives with timely notice of a mandatory vaccination policy and an opportunity to bargain as soon as practicable.

C. Additional Mandatory Vaccination Program Considerations

Finally, public employers should consider several issues when weighing the merits and challenges of a mandatory COVID-19 vaccination policy, including, but not limited to, the following:

Employees with medical or religious objections to being vaccinated should be allowed to request an exemption from a vaccination requirement;
For employees with medical or religious objections, a public employer should have protocols for facilitating an interactive dialogue with such employees to determine whether reasonable accommodations can be provided;
Human resources staff and members of the management team should receive training on implementing and administering a mandatory COVID-19 vaccination program;
Public employers should establish recordkeeping protocols for collecting confidential medical information regarding employees with disabilities, and segregating such information to ensure compliance with the ADA;
Applicable employee personnel policies should be reviewed and updated to ensure compliance and guidance that acknowledges any new vaccine requirement; and
Public employers, if they determine to move forward with mandated vaccinations, should work with their designated legal counsel to assist creating an appropriate policy, including applicable forms and notices.

Given that the issue of requiring COVID-19 vaccinations is generally uncharted territory, we encourage public employers to consider the risk associated with mandating vaccinations and to closely monitor any announcements and guidance that may be released by federal and state agencies these next coming weeks. Public employers should also consider evaluating alternatives to a mandatory COVID-19 policy to the extent possible, such as remote work arrangements, social distancing, and non-mandatory vaccination policies. We recommend that public employers consult with their legal counsel before implementing a mandatory COVID-19 vaccination policy to ensure legal and practical risks are mitigated. Please feel free to contact the Authors of this Alert or your regular AALRR counsel with any questions.

^[1] See 21 U.S.C. § 360bbb-3(e)(1)(A). The FDA also provided broad guidance on the scope of EUA in 2017.

^[2] The EEOC issued a similar “Frequently Asked Questions” page in March 2020 (and regularly updates the page) concerning COVID-19 and the impact of the ADA and other EEO-administered federal laws.

^[3] See 42 U.S.C. §§ 12111(3), (8); 29 C.F.R. §§ 1630.2(r), 160.15(b)(2).

^[4] See Cal. Gov. Code § 3500, et seq.

^[5] For more information on this argument in a related COVID-19 context, please see one of our Firm’s prior Alerts.