Can an Employer Require a COVID Vaccine?
In recent weeks, many readers of my blog have asked me whether their employer may require them to receive a COVID vaccine. As a result, I have decided to devote a blog post to this topic.
This post will summarize the issues relating to employer-mandated vaccines. First, I’ll describe the recent orders of the Biden administration regarding vaccines. Then, I’ll review how courts around the country have ruled on vaccine mandates. NOTE: This post was last updated on September 27, 2021. Because the legal landscape surrounding COVID and vaccines changes rapidly, make sure that you check the most recent information.
Orders of the Biden Administration
According to the White House “COVID-19 Action Plan”, the Executive Branch is taking the following actions regarding employer-mandated COVID vaccination:
1. The Occupational Safety and Health Administration (OSHA) is “developing a rule” that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.
2. The President has signed an executive order requiring that each federal agency “implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.”
3. The President has signed an executive order requiring that all executive departments and agencies include in their contracts, a clause requiring all contractors and subcontractors comply with the guidelines of the Safer Federal Workforce Task Force, provided that the Director of the Office of Management and Budget (OMB) approves the Safer Federal Workforce Task Force guidelines. While these guidelines change, the guidelines often require vaccination for most employees.
4. The Centers for Medicare and Medicaid Services (CMS) is “taking action” to require COVID vaccinations for workers in most health care organizations that receive Medicare or Medicaid reimbursement.
How Courts Around the Country Have Ruled
There have been many court cases regarding mandatory vaccination, both before and after the COVID-19 pandemic. In this section, I’ll examine various legal arguments that have been made against mandatory vaccination, and how courts have ruled. If you challenge a mandatory vaccination in court, there’s no guarantee that your judge will accept – or reject – the legal arguments listed here. Because COVID vaccines are so new, the law on whether an employer can require COVID vaccines, and what an employer can require of an employee who does not take a COVID vaccine, has not been clearly settled. This is one of the difficulties of writing a post on this topic – the law, and thus the outcome of any case, is unclear.
Arguments made against mandatory vaccination
People have challenged mandatory vaccines by arguing:
· Religious objections
· Personal belief exemptions
· The government agency that ordered mandatory vaccination did not have the power to make the order
· Medical exemption
Title VII of the Civil Rights Act of 1964 states that it is illegal for any employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” because of the individual’s religion. Title VII further says that an employer must make “reasonable accommodations” for an employee’s religious beliefs, unless making such accommodations will result in “undue hardship on the conduct of the employer’s business.”
Recently, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing the Civil Rights Act, issued guidelines advising employers on how to handle requests for religious exemptions from the COVID-19 vaccine. These guidelines state that employers must allow religious exemptions from the COVID vaccine, unless the employer cannot make reasonable accommodations for unvaccinated employees without undue hardship on the employer. The EEOC guidelines explain what employers may and may not do, and advise employers how they might make reasonable accommodations. Read these guidelines here.
On September 14, 2021, a New York federal court prohibited the New York State Department of Health (DOH) from enforcing a COVID vaccine mandate if the mandate did not include a religious exemption. DOH had issued a regulation requiring health care workers to be vaccinated. Unlike previous orders of the DOH, the new regulation did not include a religious exemption. Therefore, the Court issued a temporary restraining order against DOH; the Court held:
“DOH is barred from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination or that they revoke any exemptions employers already granted before the vaccine mandate issued;
(b) The DOH is barred from interfering in any way with the granting of religious exemptions from COVID-19 vaccination going forward, or with the operation of exemptions already granted”
Read the case here:
The U.S. Supreme Court held that if you are fired because you refuse to engage in conduct that violates your religious beliefs, you have the right to collect unemployment benefits. In 2014, in Valent v. Board of Review, a New Jersey court held that a woman who had a personal belief, though not a religious belief, against receiving influenza vaccinations was entitled to employment compensation after she was fired for refusing an influenza vaccine. The Court held that to limit employment compensation only to those who were terminated for their religious beliefs, impermissibly favored religion over non-religion.
Personal Belief Against Vaccination
Similarly, in McCarthy v. Ozark School District, the court confronted a state law that allowed religious exemptions to parents who objected to vaccines required for their children to attend school. However, the law did not allow parents to object to vaccination for merely “philosophical” beliefs. The trial court held that to grant an exemption based on religious belief, but not philosophical belief violated the Establishment clause of the First Amendment. The school appealed; while the case was under appeal, the state legislature added a personal belief exemption to the state’s vaccine law. The appeals court then held that the case was moot.
Following Valent and McCarthy, if your employer requires a vaccination, but does not allow an exemption for personal belief, you could argue that the law which allows exemption only because of religious belief is unconstitutional.
Lack of authority of the agency issuing the order
Many challenges to COVID regulations have argued that the agency does not have the authority to issue the order. This may be a particularly strong argument against the order that OSHA is currently developing. This OSHA order will purportedly require all employers with more than 100 employees, to require that their employees be vaccinated.
Normally, for OSHA to enact a regulation, OSHA must first publish notice of the regulation in the Federal Register and allow interested parties to make comments on the impact of the proposed regulation. OSHA must allow this notice and comment before the rule takes effect. In enacting the mandatory vaccine regulation, OSHA is not allowing notice and comment as is normally required.
Instead, OSHA is following a little-used procedure known as the “temporary emergency standard.” Under the temporary emergency standard, if the Secretary of Labor determines that an emergency exists, OSHA may enact a regulation without following the notice-and-comment procedure.
In all of its existence, OSHA has used the temporary emergency standard only nine times. Six of those times, OSHA’s actions were challenged in court; in five of those challenges, the court held that OSHA did not have the emergency authority to enact the regulation. OSHA has not used the temporary emergency standard since 1983.
Thus, their authority to enact this COVID vaccine mandate is tenuous at best. The Occupational Safety and Health Act provides that any person aggrieved by a regulation promulgated under the temporary emergency standard may file a contest in the federal circuit court, in the circuit where the person resides or has his principal place of business. Expect to see many court challenges to OSHA’s vaccine mandate coming soon. For an excellent commentary on the issue of whether OSHA has authority to require vaccines under a temporary emergency standard, read this article in the American Bar Association Journal.
In many states, various state agencies have purported to enact vaccine mandates. Depending on your state laws, there may be an argument that the state agency does not possess the authority to issue such rules. If you suspect that your state agency has impermissibly overstepped its authority, consult an attorney licensed in your state.
The Americans with Disabilities Act (ADA) and the Rehabilitation Act, forbid employers from discriminating against employees based on disability. Similar to the Civil Rights Act, an employer must make reasonable accommodations for employees with a disability, as long as those accommodations don’t cause an undue hardship on the employer.
The EEOC has issued guidelines, stating that if an employee has a medical condition that prevents him from receiving a vaccine, the employer may not require him to receive the vaccine, provided that the employer can make reasonable accommodations for the employee without undue hardship. In these guidelines, the EEOC discusses how employers may handle employees who have a medical condition that prevents them from receiving a COVID vaccine. Read the guidelines here.
Which Court Rulings Apply to You?
Two points to note:
1. The recent and pending executive orders of the Biden administration do not overrule prior court decisions. Nor do the executive orders overrule congressional statutes that allow for exceptions to vaccine mandates. The Civil Rights Act, the ADA, and the Rehabilitation Act are all congressional statutes. An executive order cannot overrule a court ruling or a federal statute that Congress has passed. Generally, the only way the government can invalidate a prior court ruling is by 1) a subsequent decision of the same court or a higher court, or 2) a congressional statute. (If the court ruling was based on the Constitution, a congressional statute cannot overturn the court ruling.) In general, the only way the government can invalidate a congressional statute is by 1) a subsequent congressional statute or 2) a court ruling that the congressional statute is unconstitutional.
2. As I have said, courts around the country have made different rulings on vaccine mandates. Some employers are telling their employees, “A court ruled this, so this is what you have to do.” But, the employers aren’t telling their employees which court made the ruling. A court ruling is only binding on you if it was made by a court with jurisdiction over your region.
Jurisdiction of the Federal Courts – Which Courts Have Authority Over Each Region?
The only court that has jurisdiction over the entire U.S. is the U.S. Supreme Court. Below the Supreme Court, there are circuit courts of appeals. Each circuit court of appeals has jurisdiction over its own circuit. Each circuit includes a few states. (The District of Columbia has its own circuit.) A ruling by a circuit court of appeals is only binding in its own circuit.
Below the circuit courts of appeals, there are federal district courts. A ruling by a federal district court is only binding in the district where the court sits.
Here is a map showing the jurisdiction of each of the federal circuit and district courts:
As you can see, Bartlesville, Oklahoma, is located in the Northern District of Oklahoma, in the Tenth Circuit. Therefore, the only federal courts with jurisdiction over Bartlesville are:
· The U.S. Supreme Court
· The Tenth Circuit Court of Appeals
· The District Court for the Northern District of Oklahoma
To find out which circuit and district you are in, click on the Federal Court Finder on the website of the U.S. federal court system.
Jurisdiction of State Courts
Each state has its own court system. A state court ruling only applies in its own state.
In Oklahoma, there is the Oklahoma Supreme Court, the Oklahoma Court of Criminal Appeals, and the Oklahoma Court of Civil Appeals. Each of these courts has jurisdiction over the entire state of Oklahoma. Below these courts, there are district courts; each court has jurisdiction only over its own district. To find which district you live in, click here on the website of the Oklahoma State Courts Network.
Other states have their own court system; the rules that determine which court has jurisdiction are different in each state. Check with an attorney licensed in your state.
If You Need Help
The Persaud Law Office can provide some advice on vaccine mandates. However, our resources are limited, and we cannot respond to every request for help.
We can provide you with a free copy of Kimberly Winbush’s excellent article, “Litigation Arising from Refusal to Vaccinate” published in American Jurisprudence Trials in 2020 (updated 2021). This article provides a thorough discussion of the law surrounding an individual’s right to refuse vaccination. Much of the information in this post comes from Ms. Winbush’s article. Because of copyright restrictions, we can’t post this article online, but if you e-mail our office, we’ll send you a free copy.
Liberty Counsel is an excellent organization that has successfully challenged vaccine mandates around the country. Liberty Counsel is a non-profit organization and can represent you for free. If you need legal assistance in challenging a vaccine mandate, go to Liberty Counsel’s website, and fill out the contact form at https://lc.org/legal-help.
Photo credits: District court map courtesy of https://en.wikipedia.org/wiki/United_States_district_court#/media/File:US_Court_of_Appeals_and_District_Court_map.svg. Licensed under the Creative Commons Attribution-Share Alike 2.5 Generic license. Photo of vaccine courtesy of https://commons.wikimedia.org/wiki/File:Pfizer-BioNTech_COVID-19_vaccine_(2020)_C.jpg. Licensed under the Creative Commons Attribution 2.0 Generic license.