Vaccine Mandates in the United States: Multi-level Actors and Rights in Tension: Private Employers (Part I)

by | Feb 2, 2022

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About Anne Marie Lofaso

Anne Marie Lofaso is the Arthur B. Hodges Professor of Law at West Virginia University College of Law, specializing in labor law, jurisprudence, and constitutional law. She is the Vice President of the West Virginia Advisory Committee to the United States Commission on Civil Rights. She received her D.Phil. in law from Oxford under the supervision of Sandra Fredman.

Image description: A person getting vaccinated.

Several states, municipalities, and even private entities in the United States have imposed COVID-19 vaccine mandates. But it was not until September 2021 that the federal government announced that it would enact its own vaccine mandate. The legal questions surrounding vaccine mandates are complicated because they concern the proper role of the federal and state governments in mandating vaccines and governmental separation-of-powers matters over who can issue mandates. The legality and desirability of these mandates are further complicated by the numerous, often conflicting, human rights issues emanating from these mandates, particularly citizens’ healthcare rights, socio-economic rights, and religious freedoms.

This blog explains some of these complexities in a three-part series. Part I explains the legal ramifications for private employers who wish to mandate vaccines in their workplace. Generally, private employers can mandate vaccines so long as they provide medical and religious exemptions in line with federal and state human rights laws. These exemptions, however, are narrow and subject to an employer’s operational needs. Part II explores state authority to mandate vaccines with a primary focus on public-employer mandated vaccines. Part III reviews the Biden mandate—a federal government mandate for 84 million federal workers and workers at facilities receiving federal funding.

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Legally, the least complicated situation involves the private employer vaccine mandate. In the United States, the employment relationship is predominantly regulated by state, not federal, law. In every state, except Montana, employment is at will, meaning that the employer can fire the employee for any reason, good or bad, or for no reason at all. Although the at-will doctrine has been in place for over 100 years, state judges or state legislators have cut back on some of the reasons an employer can fire an employee. But these exceptions are limited and vary from state to state. This means that an employer can institute a vaccine mandate as a condition of employment and fire an employee who fails to follow that mandate unless the affected employees can shoehorn their concerns into a particular legal exception.

There are a few state law exceptions that could allow an employee to avoid an employer-mandated vaccine. In every state, the employee could contract around that mandate. But given that most employees have limited bargaining power, this workaround is available only to a few managerial employees who command greater bargaining power because of a special talent or who fill a niche business need, or possibly to unionised workers if their union is powerful enough to bargain for such a condition. The other major state law exception, available in most but not all states, is the public policy exception under which an employee fired for refusing to be vaccinated could institute a wrongful termination lawsuit if the employee can show that the termination violated a well-established public policy. No such public policy exists in these circumstances, especially here, where the employer can likely justify the vaccine under a workplace safety rationale, considering the interests of the entire workforce. Finally, some states, such as Montana have enacted protective legislation to prohibit employers from taking adverse employment action against workers who refuse to be vaccinated.

Federal law might also provide some legal protection for workers from being fired, primarily in the form of civil rights laws and their state law human rights counterparts. Notwithstanding the employment-at-will legal framework, employers may not violate federal law when they take an adverse employment action against an employee. For example, the Americans with Disabilities Act (ADA), a federal statute, prohibits employers from firing qualified employees because of their physical or mental disabilities. Similarly, Title VII of the Civil Rights Act, another federal statute, prohibits employers from firing employees because of their religion (among other identity categories). Accordingly, an employer who fires an employee who cannot be vaccinated because of a disabling condition related to vaccination or who refuses to be vaccinated because of a sincere religious belief against using the vaccine may run afoul the ADA or Title VII. Moreover, under these statutes, employers must also accommodate disabling conditions and sincere religious beliefs so long as those accommodations do not pose an undue hardship on the employer’s business operations.

To avoid acting unlawfully, many employers have chosen to mandate vaccines with medical and religious exemptions. To date, the United States Food and Drug Administration has recognised only one medical reason for not vaccinating against coronavirus—those with a “known history of a severe allergic reaction (e.g., anaphylaxis)” to any ingredient in the vaccine. Moreover, very few world religions ban vaccinations. Accordingly, the burden of proving a religious exemption is high but not insurmountable because the faithful may still have a sincere religious belief against the COVID-19 vaccination, in particular, even if the religious institution to which they belong has no official policy banning vaccines. For example, two major U.S. Catholic organisations—the Catholic Medical Association and the National Catholic Bioethics Center (NCBC)—have issued statements against mandated vaccines. NCBC notably quoted the Vatican statement that “[t]hose who … for reasons of conscience, refuse vaccines produced with cell lines from aborted fetuses, must do their utmost to avoid, by other prophylactic means and appropriate behavior, becoming vehicles for the transmission of the infectious agent.”

In summary, private employer mandates conflict with human rights considerations. On the one hand, there are employees who have legitimate interests in receiving a medical or religious exemption. On the other hand, there are employees who have legitimate human rights to a healthy work environment. By utilising narrow exemptions for these limited reasons, coupled with mandatory testing and masking, an employer could probably balance these conflicting interests in a manner that maximises the human rights of all workers.

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