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March 03, 2021 Feature

Vaccination Nation

By Kate Bally
Stefan Cristian Cioata/Moment via Getty Images

Stefan Cristian Cioata/Moment via Getty Images

The EEOC suggests that employers subject to the ADA should err on the side of encouraging, rather than requiring, a COVID vaccine for employees.

Henning Jacobson was a Lutheran minister in Cambridge, Massachusetts amid a 1901 plague. He immigrated from Sweden where, as a child, he experienced “great and extreme suffering” attributable to vaccination. New England Historical Society, Henning Jacobson Loses His Freedom to the Board of Public Health,

At the time, Boston saw 1,596 cases of smallpox and 270 deaths, so the city ordered vaccination for all. On March 15, 1902, government officials demanded vaccination or a $5 fine, and Jacobson declined both. The resulting litigation reached the U.S. Supreme Court.

The Court sided with the state, recognizing its authority to uphold the public good over personal liberties. See Jacobson v. Massachusetts, 197 U.S. 11 (1905). Jacobson paid the fine, and the Court established one of the most important pieces of US public health legal precedent. The case “remains alive and well—including during the present pandemic.” Page v. Cuomo, No. 1:20-CV-732, 2020 WL 4589329, at *8 (N.D.N.Y. Aug. 11, 2020).

Although U.S. employers are not charged with safeguarding constitutional principles in the same way as governmental bodies, they do face a similar dilemma about whether to mandate vaccination.

Is it Legal?

Like so many questions in employment law, the answer is “yes…however…” Vaccine requirements are nothing new, particularly in healthcare, but employers must account for at least two important caveats. The US Equal Employment Opportunity Commission (EEOC) provided updated guidance in EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws: Vaccinations, (last updated as of this writing, Dec. 16, 2020). Among other things, it clarified that The Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) present two possible grounds for mandatory vaccination exemption.

First, the ADA provides that qualified employees with a covered disability are entitled to a reasonable accommodation absent undue hardship. The key to applying that analysis is identifying the medical condition that presents the kind of disability that would trigger an accommodation.

Medical objections to vaccination predate even Henning Jacobson, and the courts have reached inconsistent conclusions. The Eighth Circuit held that sensitivities to chemicals or allergies did not meet the definition of disability. See Hustvet v. Allina Health Sys., 910 F.3d 399 (8th Cir. 2018). However, the Third Circuit reversed the dismissal of an ADA complaint on similar grounds in a case involving severe anxiety and eosinophilic esophagitis. See Ruggiero v. Mount Nittany Med. Ctr., 736 F. App’x 35, 36 (3d Cir. 2018).

The case law on mandatory vaccinations is not particularly robust, and most of it arises in healthcare. The EEOC’s guidance is instructive, but not binding, and suggests that an employer’s mandatory vaccination program is defensible if the employer can show that an unvaccinated employee presents a direct threat. For now, the guidance suggests that the COVID-19 pandemic meets the direct threat standard, but conditions may change. The EEOC reminds employers of the need to engage in the interactive process but also recognizes that there may be instances in which reasonable accommodation is simply not available. Because this is America, litigation (and clarification) is sure to follow.

Second, Title VII prohibits discrimination and requires reasonable accommodation of an employee’s sincerely held religious belief absent undue hardship. Although personal preferences will not create legal protections, courts differ in their interpretation of “sincerely held.” In at least one instance, the Third Circuit sided with the employer, finding the plaintiff’s objections to be more akin to “sincere opposition to vaccination” rather than “opposition to vaccination [as] a religious belief.” Brown v. Children’s Hosp. of Philadelphia, 794 F. App’x 226, 227 (3d Cir. 2020).

Even assuming sincere belief, courts may reject objections to mandatory vaccines as creating an undue hardship. See Robinson v. Children’s Hosp. Bos., No. CV 14-10263-DJC, 2016 WL 1337255 (D. Mass. Apr. 5, 2016). Religious objections have been disfavored in court, but at least one court denied a motion to dismiss a similar claim citing veganism as the religion. Although not a ringing endorsement of the plaintiff’s claim, the court deemed it “plausible.” Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., No. 1:11-CV-00917, 2012 WL 6721098, at *4 (S.D. Ohio Dec. 27, 2012).

Although the accommodation questions are the most obvious among potential pitfalls, there are others worth mention. The Occupational Safety and Health (OSH) Act imposes a general duty to maintain a safe working environment. Workers’ compensation exposure is all but guaranteed for mandatory vaccination and may apply as well for voluntary (but strongly encouraged) vaccination. Finally, protections afforded by the National Labor Relations Act could complicate any cost/benefit assessment as vaccine mandates might run afoul of collective bargaining agreements.

Is it Sensible?

Although labor and employment lawyers spend most of their time assessing legal risk, in practice, employers are just as concerned with practical application.

A vaccine not properly vetted could do harm. As of this writing, there are two COVID-19 vaccines with emergency use authorizations (EUA) approval (Pfizer-BioNTech and Moderna), but none with full FDA approval. AstraZeneca’s September 2020 trial produced at least one suspected significant medical complication. Katherine J. Wu and Katie Thomas, AstraZeneca Pauses Vaccine Trial for Safety Review, N.Y. Times, Sept. 8, 2020, The CDC maintains a running list of vaccine safety setbacks and resolutions that suggests lessons have been learned, but mistakes have been made. Centers for Disease Control and Prevention, Historical Vaccine Safety Concerns,

The availability of the vaccine is limited. As of this writing, front line workers, at-risk populations, and older Americans are receiving priority.

A COVID-19 vaccine may not be 100 percent effective. Even with a fully vaccinated population, employers should consider additional ongoing safety measures, such as remote work, masks, and social distancing. Questions remain about how long the vaccine provides protection and the circumstances under which subsequent inoculation may be required.

Employees may concede their employer’s right to require vaccines, but they don’t have to like it. Vaccine mandates may hurt morale or cause employees to jump ship. Although Gallup reports that, as of December 8, 2020, 63 percent of Americans are willing to be inoculated with FDA-approved COVID-19 vaccines (up from 50 percent in September 2020), that leaves a significant portion of the country who would decline. Megan Brenan, Willingness to Get COVID-19 Vaccine Ticks Up to 63% in U.S., Gallup, Employees may not welcome even a best-case scenario vaccine with open (and needle-ready) arms.

Finally, for some workplaces, vaccine mandates may not be necessary. If remote work is working, employers may opt for continued social distancing over medical intervention. As much as things have changed, it continues to be very difficult to transmit this virus over Zoom.

Just because you can do a thing, doesn’t mean you should. The EEOC suggests that employers subject to the ADA should err on the side of encouraging, rather than requiring, a vaccine. U.S. Equal Employment Opportunity Commission, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, Although successful challenges to mandatory vaccines have been few, our experience of them culturally outside of healthcare is just as limited. Entrepreneurs are known to be risk-takers, but successful entrepreneurs are those who understand those risks first. Henning Jacobson didn’t win the day, but his sentiments and the force of his objections persist into the complicated COVID-19 era.

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By Kate Bally

Kate Bally is Director of Thomson Reuters Practical Law’s Labor & Employment Service. She serves as a Vice-Chair to the ABA TIPS Corporate Counsel and In-House Professionals General Committee, Vice-Chair to the Employment and Labor Law General Committee, and CLE Board Standing Committee Member.