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 of Education (2018) 29 Cal.App.5th 980, California appellate courts upheld Senate Bill No. 277, which repealed the personal belief exemption to California’s immunization requirements for school children.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.
