Are Mandatory Vaccinations for Public Employees Legal? (Mostly) Yes

                As the nation prepares to begin vaccinating individuals for COVID-19, many employees are questioning whether their employer can require that they take the vaccine. The short answer is yes, government employers can mandate that employees be vaccinated. However, this authority is not without limitations. Employers must make reasonable accommodations for individuals with religious objections or medical conditions that make vaccination a risk.

States/ Local Governments Can Mandate Vaccinations

                Over 100 years ago, the Supreme Court decided that states can mandate that their citizens get vaccinated. In Jacobson v. Commonwealth of Massachusetts (1905) 197 U.S. 11, the Court upheld a local law in Cambridge, Massachusetts requiring inhabitants receive the smallpox vaccine. The Court’s ruling relied on the principles that an individual’s right to liberty and bodily autonomy is not absolute, and that states have the authority to take actions necessary to protect the health and wellbeing of their citizens (commonly referred to as states’ “police powers”).

                The Supreme Court did not revisit government mandated vaccinations again until 1992 in Zucht v. King (1992) 260 U.S. 174. The Zucht Court held that mandating vaccines for only one group of people (in this case school children), did not violate individuals’ Fourteenth Amendment rights to due process or equal protection. This same logic would seem to apply to a mandate that first responders or public safety officers be vaccinated, even if the same requirement is not applied to the general public.

                More recently, multiple California appellate courts have upheld Jacobson and Zucht, ruling that when it comes to mandatory vaccinations, the need to public safety outweighs individuals’ rights to privacy or bodily autonomy. In Brown v. Smith (2018) 24 Cal.App.5th 1135 and Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, California appellate courts upheld Senate Bill No. 277, which repealed the personal belief exemption to California’s immunization requirements for school children.

                In conclusion, it is well-settled law that state/local governments—and by extension government employers—can mandate that citizens be vaccinated. However, this authority is not absolute. Government employers may still be required to make accommodations for individuals with sincere religious beliefs or medical conditions that make vaccination a risk.

Medical Accommodations under the ADA/ FEHA

An individual that suffers adverse medical consequences—such as an allergic reaction—to vaccinations may be entitled to a reasonable accommodation under the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.) and the California Fair Employment and Housing Act (“FEHA”) (Gov.  Code § 12900 et seq.)

 The ADA and FEHA require that employers to provide a reasonable accommodation for an employee’s disability. Such disability may include an inability to be vaccinated due to a serious medical condition. The employee must first put their employer on notice and request accommodation to begin an interactive process. In addition, employees must put forward medical documentation to substantiate their claim of a disability.

Moderate reactions to vaccines are probably not legally sufficient. For example, in Hustvet v. Allina Health System (8th Cir. 2018) 910 F.3d 399, 411, the Eighth Circuit affirmed a judgment against an employee who had “never been hospitalized due to an allergic or chemical reaction [from a vaccine], never seen an allergy specialist, . . . [or] ever sought any significant medical attention when experiencing a chemical sensitivity, taken prescription medication because of a serious reaction, or had to leave work early because of a reaction.” Therefore, this claim will only be available to individuals who suffer serious, documented medical consequences from being vaccinated.

Religious Accommodations Under Title VII

Individuals with sincerely held religious objections the COVID-19 vaccine may also seek a religious accommodation to a vaccination requirement under Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion.” (42 U.S.C. § 2000e-2(a)(1).)

An employer must make reasonable accommodations for employees sincerely held religious beliefs “unless an employer demonstrates that he is unable to reasonably accommodate… without undue hardship on the conduct of the employer’s business.” (42 U.S.C. § 2000e(j).) Thus, an employer is obligated to try to reasonably accommodate an employee’s religious beliefs to the extent it does not cause an undue hardship on the business, and failure to do so violates Title VII. This does not mean that the employer is required to offer an employee his or her preferred accommodation. Rather, the accommodation offered simply must be reasonable. (Bruff v. N. Miss. Health Servs., Inc. (5th Cir. 2001) 244 F.3d 495, 501.)

Conclusion

In conclusion, public employers will generally be able to mandate that employees receive vaccinations if they deem it necessary for public health and safety. Individuals for whom vaccination poses a serious health risk should be able to obtain an exemption under the ADA/FEHA. Further, individuals that hold sincere religious objections to vaccinations may be able to obtain a reasonable accommodation from their departments. 

Remember, any agency that seeks to mandate vaccinations of its employees must first meet and confer with recognized employee organizations over its vaccination policies.

 

San Francisco DSA Obtains Two (2) Important PERB Complaints Against the SF Sheriff’s Office Protecting Members' CTO Rights and Preventing Management Interference

The San Francisco DSA has recently obtained two (2) separate PERB Complaints for unfair labor practices committed by the Sheriff's Office.  The first involves protecting DSA member's right to continue earning and using CTO to mitigate the excessive amounts of overtime mandated by SF's refusal to adequately staff the department and the second unfair labor practice involves the departmental managers interference in DSA elections.

Unilateral Limitations on Right to Earn and Burn CTO

The DSA recently prevailed in a heated interest arbitration with the City and County of San Francisco over the terms of a successor contract.  The continued  ability of the DSA membership to earn and burn CTO was the highest priority issue for both parties.  SF wanted to restrict this right in order to reduce overtime costs associated with the department's chronic under staffing.  Despite that the DSA retained the right to earn and burn CTO in the interest arbitration, the department attempted to exploit the COVID-19 pandemic as an excuse to unilaterally eliminate member's CTO rights.   

On March 23, 2020, CCSF announced that it was suspending CTO earn and burn based on the COVID-19 public heath emergency. The “emergency” exceptions to meet and confer requirements are limited. CCSF did not have any financial emergency or staffing shortage that warranted the change. Rather, it was evident CCSF saw another opportunity, citing COVID-19, to accomplish its goal of taking away CTO earn and burn. 

On April 28, 2020, SFDSA filed another charge based on CCSF’s unilateral decision to suspend the Compensatory Time Off (CTO) agreement. The CTO agreement allows DSA members to “earn” CTO up to 160 hours and then “burn” the hours before they can accrue again. CCSF has made numerous attempts to take away CTO earn and burn.

On December 2, 2020, PERB issued a complaint alleging CCSF committed an unfair labor practice by failing to provide notice and an opportunity to meet and confer over its unilaterally implemented changes to CTO earn and burn.

The declared COVID-19 “public health emergency” does not give employers free reign to unilaterally implement changes to wages, hours, or working conditions within the scope of representation.

Interference

On December 30, 2019, the San Francisco Deputy Sheriffs’ Association (DSA) filed a PERB Charge based on the City and County of San Francisco’s (CCSF) unlawful interference. The Meyers-Milias-Brown Act (MMBA) prohibits employers and their agents from interfering with, intimidating, restraining, coercing, or discriminating against union members and representatives based on their protected activity.

Management employees, like captains and sergeants, are “agents” of the employer. They have a duty of “strict neutrality” regarding union affairs. This means union members have a right to participate in selecting their union leaders without management interference.  

During a contested DSA presidential election, Sheriff Department management posted on Facebook encouraging DSA members to vote for the challenging candidate. The posts criticized the incumbent President’s spending decisions, alleged “cheating” during the election campaign, and violations of the bylaws.

The DSA attempted to resolve the matter informally. The DSA was assured CCSF would it would take action to correct the behavior. Unfortunately, immediately following this assurance, the involved captain complained about the incumbent President addressing his members during briefing. Emails indicated the Department intended to launch an internal affairs investigation.

On November 25, 2020, PERB issued a Complaint against CCSF. Based on the DSA’s charge, PERB’s complaint includes allegations CCSF’s agents committed an unfair labor practice by interfering with the DSA’s and their members’ protected activity. The complaint also alleges CCSF committed an unfair labor practice by launching a complaint based on the President’s protected activity attending the briefing.

The complaint solidifies the purposes of the MMBA to protect against employers influencing union elections. Union leaders cannot effectively advocate for their members if they’re in management’s pocket. Clearly then, members’ rights to select their leaders must be free from management coercion.

Governor Newsom Signs Law Allowing Ex-Convicts to Become Firefighters

 On September 11^th 2020, Governor Newsom signed into law AB 2147. With its passage, inmate firefighters are now free to pursue a professional career in firefighting after the end of their prison term.

Currently, the California Department of Forestry and Fire Prevention collaborates with the Department of Corrections and Rehabilitations to operate conservation camps. These are minimum security facilities that inmates can volunteer at. During their volunteer time, inmates receive training while assisting in fighting local fires.

Under AB 2147 certain non-violent offenders that have participated in the conservation program can request that a court expunge their conviction after release.  Importantly, due to AB 2147, a qualifying ex-con may now receive EMT certification where they previously could not. According to the legislations sponsors, this eliminates any concerns that the former inmate is unable to receive EMT certification, thus opening “a pathway to recidivism.”

 The Governors press release on the bill can be read here.  

Ninth Circuit Rejects Janus Based Claims Against Unions for Dues Refunds

On September 9, 2020, the Federal District Court in the Southern District of California granted California Statewide Law Enforcement Association’s (“CSLEA”) and the State’s motion to dismiss CSLEA members’ complaint. Some CSLEA members brought the lawsuit alleging CSLEA and the State violated their First Amendment rights by (1) refusing to accept their resignation from union membership, (2) continuing to deduct union dues from their paychecks, and (3) forcing them to join the union by threatening fees.

The CSLEA members bringing the claim were lifeguards employed by the Department of Parks and Recreation. When they joined CSLEA, their membership application included a provision authorizing dues deductions from their wages and limitations on the time period in which they could withdraw membership. According to their memorandum of understanding (“MOU”), membership had to be withdrawn during the thirty days before expiration of the MOU. When the claimants joined CSLEA, agency fees or “fair share” fees from non-members were still allowed.

In 2018, the United States Supreme Court decided Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018) and held that the deduction of agency fees from non-members of a union violated the nonmembers’ First Amendment rights absent actual consent.  The claimants decided to withdraw their union membership based on that decision. However, their withdrawal was denied because it was not within the permitted withdrawal window and dues deductions continued. According to their MOU, membership had to be withdrawn during the thirty days before expiration of the MOU.

The court considered Janus and determined that First Amendment concerns were not implicated because the claimants had affirmatively consented to union membership. Janus does not apply to voluntary agreements.  Rather, Janus specifically held that nonmembers cannot be required to pay union fees because it forces nonmembers to subsidize private speech they never agreed to. However, these lifeguards were union members because they agreed to join the union, consented to the deductions and consented to the membership withdrawal limitation. Therefore, their claim was invalid and the federal district court dismissed their claim.  

 Subsequently, the ninth Circuit issued a decision which should resolve similar claims throughout the state of California. On September 16, 20202, the Ninth Circuit upheld members' agreements that authorized the state to deduct dues and remit them to the union, which were irrevocable for one year.  Belgau v. Inslee --F.3d--, 2020 WL 5541390 (9th Cir. 2020) The Court explained that the state did not violate state employees' First Amendment rights by continuing to deduct union dues until the end of the one-year period from employees' paychecks after they revoked their union memberships.  The Court emphasized the difference between a nonmember being compelled to pay versus a member who affirmatively signed up to pay by agreeing to be a union member. Similarly, the claimants in Belgau were Washington State employees who opted into union membership and withdrew membership after Janus was decided. Although their withdrawal was approved, the union continued deducting dues for a year according to a provision of their collective bargaining agreement.

In Belgau¸ the Ninth Circuit noted that rather than being a state action, the deduction of dues was a private agreement between the consenting members and the union. Furthermore, by the time the claim reached the Ninth Circuit, the claim was moot. Deductions stopped after one year, as listed in the agreement.  The state employees argued that those deductions violated the First Amendment as held in Janus because they no longer consented to pay dues. But the Court noted that “the First Amendment does not support Employee’s right to renege on their promise to join and support the union.” The union is not a state actor under Section 1983. Based on their voluntary consent, the Ninth Circuit upheld the lower court’s dismissal.