University of California, Hastings College of the Law UC Hastings Scholarship Repository

Faculty Scholarship

2021

Employer-Mandated for COVID-19

Mark A. Rothstein

Wendy E. Parmet

Dorit R. Reiss UC Hastings College of the Law, [email protected]

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Recommended Citation Mark A. Rothstein, Wendy E. Parmet, and Dorit R. Reiss, Employer-Mandated Vaccination for COVID-19, 111 Am. J. 1061 (2021). Available at: https://repository.uchastings.edu/faculty_scholarship/1832

This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. : BUILDING LONG-TERM CONFIDENCE

unrelated to their public health goals, Employer-Mandated oppressive to particular individuals, or imposed a “plain and palpable violation Vaccination for COVID-19 of fundamental law.”3 For over a century, Jacobson v Mas-

Mark A. Rothstein, JD, Wendy E. Parmet, JD, and Dorit Rubinstein Reiss, LLB, PhD sachusetts has been the leading au- thority for the state’s ability to require ABOUT THE AUTHORS vaccination. In 1922, the Supreme Court relied on this case to uphold a law re- Mark A. Rothstein is with Institute for Bioethics, Health Policy and Law, University of quiring that children be vaccinated to Louisville School of Medicine, Louisville, KY. Wendy E. Parmet is with School of Law, Northeastern University, Boston, MA. Dorit Rubinstein Reiss is with University of California attend school, even though there was Hastings College of the Law, San Francisco. Wendy E. Parmet is also an AJPH associate no outbreak at the time of the mandate.5 editor. In a 1944 case concerning child labor laws, the Supreme Court explained that See also Morabia, p. 982, and the Vaccines: Building Long-Term religious freedom “does not include lib- Confidence section, pp. 1049–1080. erty to expose the community or the child to communicable disease.”6 In 1990, the hen the US Food and Drug Ad- issue of whether vaccination could or Supreme Court further secured states’ Wministration (FDA) decided to should be mandated for education, right to mandate vaccination against grant emergency use authorization travel, or other activities.2 This editorial claims of religious freedom by holding AJPH (EUA) for the first two vaccines for focuses on some of the legal and public that generally applicable state laws that do ue22,Vl11 o 6 No. 111, Vol 2021, June COVID-19, the United States’ response health policy issues related to employer- not discriminate against religion do not to the pandemic entered a new phase. mandated vaccination. violate the Constitution’sprotectionfor Initially, the greatest challenge is having religious liberty.7 Since then, courts have enough doses of and adminis- THE LEGAL FOUNDATIONS rejected most constitutional challenges to tering them to all who want it. Yet even FOR VACCINE MANDATES state vaccine laws, even those without a while many wait expectantly for their religious exemption.8 turn to be vaccinated, a significant mi- Vaccine mandates in the United States Whether the courts will adhere to this nority of Americans are hesitant. Lack of date back to 1827, when Boston, Mas- precedent, however, is uncertain. On information or misinformation about the sachusetts, became the first jurisdiction November 25, 2020, in Roman Catholic vaccine, a long-standing and well- to require that children be vaccinated Diocese of Brooklyn v Cuomo,9 the Su- entrenched antivaccination movement, against smallpox to attend school.3 In preme Court granted an injunction distrust of public health officials, and po- the years that followed, such mandates against New York’s COVID-related re- litical polarization have left many people became common, and they were almost strictions on in-person worship. Al- ambivalent or opposed to vaccination. always upheld by the courts. though the Court had previously refused According to a poll by the Kaiser Family The US Supreme Court did not to enjoin state restrictions of religious Foundation taken in late November and consider mandatory vaccination services during the pandemic, with Jus- early December 2020, 27% of respon- until its 1905 decision in Jacobson v tice Amy Coney Barrett on the Court, a dents surveyed stated that they would Massachusetts.4 The Court rejected the new majority ruled that New York had “probably” or “definitely” not be willing to claim that a Cambridge, Massachusetts, violated the First Amendment by regu- be vaccinated.1 Reflecting the sharp par- regulation that required residents to lating worship more strictly than some tisan divide that has characterized views be vaccinated against smallpox (then secular activities. In a concurring opin- about the pandemic, Democrats (86%) epidemic) or pay a $5 fine violated the ion, Justices Gorsuch and Alito ques- were far more likely than Republicans Due Process clause of the Fourteenth tioned the applicability of Jacobson v (56%) to be vaccinated. Amendment. The Court nevertheless Massachusetts to religious liberty claims. The prospect of numerous Americans recognized that state vaccine mandates In a later case, the same justices sug- declining vaccination has raised the could be unconstitutional if they were gested that in some settings, such as

Editorial Rothstein et al. 1061 VACCINES: BUILDING LONG-TERM CONFIDENCE

education, public health laws without April 2020, the Advisory Committee on against COVID-19 to prevent the spread exemptions might violate the Free Ex- Practices established a of the virus, reassure employees and ercise clause of the First Amendment working group dedicated to following customers that the premises are safe, even if they do not discriminate against COVID-19 vaccines through their devel- avoid potential liability for transmission religion. If the majority adopts that ap- opment and preparing recommenda- of the virus, and advance public health. proach, religious challenges to state tions for their deployment once the FDA Private-sector employers are generally vaccine laws would receive new life. granted an EUA. free to use any hiring criteria and impose Even when the First Amendment does During discussions before federal any condition of employment unless not prohibit state or federal vaccine advisory committees, officials from the doing so violates federal or state law mandates, Religious Freedom Restora- Centers for Disease Control and Pre- (public employers are subject to the tion Acts (RFRAs)—either at the state or vention and the FDA stated consistently constitutional limits applicable to states). federal level—may. The federal RFRA that COVID-19 vaccines authorized via Bills introduced in more than a dozen requires that laws imposing a substan- an EUA cannot be mandated. The law, state legislatures would prohibit em- tial burden on religion must be the least however, is not clear on this point. The ployers from mandating vaccination for restrictive means for protecting a com- relevant provision of the Food, Drug, and COVID-19.16 pelling state interest. In dissenting to the Cosmetic Act14 provides that the re- The Americans with Disabilities Act Supreme Court’s decision in Hobby quired conditions of an EUA include (ADA) and its state law analogs prohibit Lobby v Burwell, which held that the Af- informing individuals that they can ac- discrimination in employment because fordable Care Act’s contraceptive man- cept or refuse an EUA product, and of of disability. If employees assert that date violated the federal RFRA, Justice any consequences of refusal. Officials the vaccine would cause a severe ad- Ginsburg presciently raised the specter interpreted this as a prohibition of verse reaction, they would first have to that the majority’s holding might impact mandates, but the statutory language prove that they are covered under the coverage for vaccines.10 The majority says nothing about employers or even ADAbyhavingaphysicalormental dismissed those concerns, stating there states. It is directed only at vaccine re- impairment that constitutes a sub- June 2021, Vol 111, No. 6 was no reason to believe that employers cipients and providers and declares that stantial limitation of a major life activity, would object to paying for vaccines. there can be consequences for refusal. such as breathing. Even if the mandate AJPH Potentially, such consequences may in- burdens employees who are covered EMERGENCY USE clude discharge or exclusion from work, under the ADA, an employer can still AUTHORIZATION thereby allowing workplace mandates. mandate vaccination to prevent a direct This view is reflected in guidance from threat to the employee or others.17 Scientists have focused on creating a the Equal Employment Opportunity Courts are likely to find this in many COVID-19 vaccine since early in the Commission (EEOC), which clearly as- work settings if a vaccine reduces in- pandemic, when the United States sumes that vaccines approved under an fectiousness. Even if a lack of vaccina- provided grants for vaccine develop- EUA can be mandated under the same tion creates a direct threat, the ment and manufacture to several can- terms as other vaccines.15 The best argu- employer would need to provide cov- didates.11 Operation Warp Speed—the ment against mandating an EUA vaccine is ered employees who are unable to be federal task force coordinating vaccine that the vaccine is still experimental; vaccinated for medical reasons with funding, development, and distribution— however, that argument has not been “reasonable accommodation,” such as was announced on May 15, 2020.12 tested in court, and a long tradition of working remotely or using additional Despite its somewhat unfortunate allowing workplace mandates and the lack personal protective equipment. Rea- name—which implies the rushing of of clear statutory prohibition on mandates sonable accommodation is not re- vaccines—such coordination was criti- by private actors work against it. quired if it would cause an undue cal.13 Operation Warp Speed involved hardship to the employer, which is members from multiple agencies, in- EMPLOYER MANDATES defined as “significant difficulty or ex- cluding scientists with extensive experi- pense.” For example, an employer is ence in vaccine development as well as Many private-sector employers want not required to create new positions participants from industry. In addition, in their employees to be vaccinated or fundamentally alter job duties.

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According to the EEOC, if an unvac- protection,” as when employees submit raise issues under the First Amendment cinated employee cannot be accom- a list of COVID-19 concerns to their and RFRA. modated, an employer may “exclude” employer. All employers would be wise the employee from the workplace.16 to consult with their employees before PUBLIC HEALTH STRATEGY Exclusion is especially appropriate for formulating and implementing a vacci- health care workers and other em- nation plan. The development of multiple safe and ployees who have direct contact with the effective vaccines in record time pro- public. Granting leave without pay for OSHA-MANDATED vides hope that the horrible human and the duration of the direct threat is economic consequences of the coro- preferable to discharge. navirus pandemic may begin to abate Employees might also assert that a The Occupational Safety and Health and, ultimately, end. Many employers vaccination requirement conflicts with Administration (OSHA) is likely to pro- may view mandated universal employee their religion and is therefore in violation mulgate an emergency temporary vaccination as a way to keep their of Title VII of the Civil Rights Act of 1964 standard for COVID-19, which could workplaces safe and mitigate their fi- or similar state laws, which prohibit require face masks, other appropriate nancial losses, but premature and in- religious discrimination and require personal protective equipment, physical flexible vaccination mandates raise employers to provide reasonable ac- distancing, and similar measures. It also numerous legal issues. Employment commodations to an employee’s reli- might require that some or all em- policies on vaccination also need to align gious beliefs. The courts have ployees be vaccinated. Under the Oc- with public health strategies. interpreted reasonable accommodation cupational Safety and Health Act, the Without a sufficient uptake of the AJPH under Title VII as less demanding on Secretary of Labor may issue an emer- vaccine, it will be impossible to develop ue22,Vl11 o 6 No. 111, Vol 2021, June employers than under the ADA, only gency temporary standard “if employees the herd immunity necessary to end the requiring employers to incur de minimis are exposed to grave danger from pandemic. Yet those reluctant to be costs.18 Although the employee need substances or agents determined to be vaccinated have a variety of reasons, not be a member of a traditional religion, toxic or physically harmful or from new including concerns about safety and a “personal philosophy” (such as veg- hazards.”20 efficacy. Pregnant women, children anism) does not qualify.19 Further- An OSHA standard requiring em- younger than 16 or 18 years (depending more, the accommodation must be ployers to ensure that all employees are on the vaccine), elderly people in nursing reasonable—not unduly burdensome vaccinated might face two types of legal homes or similar facilities, and immu- for the employer. Recent decisions of challenges. First, a court might hold that nocompromised individuals and those the Supreme Court, however, indicating there is no “grave danger” justifying the with severe allergies were excluded a heightened concern for religious lib- requirement for workers who do not from vaccine trials. In addition, the first erty,8 could presage decisions requiring face heightened risks of exposure. approved vaccines have been shown to employers to make greater accommo- Second, a standard could be challenged prevent moderate and severe cases of dation to employees’ religious beliefs if it does not generally permit employees COVID-19, but it is not known whether and practices. to decline vaccinations or does not in- they prevent infection or whether a Under the National Labor Relations clude medical and religious exemptions. vaccinated person can infect others. Act, private sector employers with OSHA’s blood-borne pathogen standard These determinations go to the heart of unionized workforces are required to requires employers to offer vaccination employer mandates—the ability to “bargain” with the union before making for hepatitis B to exposed health care protect others—and are critical for de- unilateral changes in working condi- employees, but employees can decline ciding the law and ethics of vaccine tions. A vaccination requirement would vaccination for any reason. Although a mandates. be considered a mandatory subject of verified medical exemption from COVID- We believe that rigid, coercive ap- bargaining. Even nonunionized em- 19 vaccination probably would involve a proaches enforced by employers could ployees are protected from discharge or small number of employees, religious harden the opposition of individuals discipline if they engage in “concerted exemptions might be claimed more who are currently unsure about the activity for their mutual aid or broadly, and not allowing them might vaccine. Rather than rushing to compel

Editorial Rothstein et al. 1063 VACCINES: BUILDING LONG-TERM CONFIDENCE

vaccination, employers should help ed- nonpaid participant in an ethics panel advising Moderna on allocation of COVID-19 vaccines. ucate their employees about the bene- fits of vaccination, and help employees, REFERENCES to the extent possible, get vaccinated ff 1. Hamel L, Kirzinger A, Muñana C, Brodie M. KFF (e.g., o ering on-site vaccination or giv- COVID-19 vaccine monitor: December 2020. ing employees time off for vaccination). Available at: https://www.kff.org/coronavirus- covid-19/report/kff-covid-19-vaccine-monitor- The most hopeful scenario is that december-2020. Accessed January 1, 2021. support for vaccination will continue to 2. Gostin LO, Salmon DA, Larson HJ. Mandating COVID-19 vaccines. JAMA. 2020; Epub ahead of grow with the lack of serious adverse print December 29, 2020. events and additional evidence of the 3. Hodge JG Jr, Gostin LO. School vaccination requirements: historical, social, and legal vaccine’seffectiveness as shown in de- perspectives. KY Law J. 2001-2002;90(4):831–890. Available at: https://heinonline.org/HOL/ clining rates of infection, serious illness, LandingPage?handle=hein.journals/kentlj90&div= and death. Support from vaccinated 36&id=&page=. Accessed January 1, 2021. peers and family members—together 4. Jacobson v Massachusetts, 197 US 11 (1905). 5. Zucht v King, 260 US 174 (1922). with consistent, positive messaging from 6. Prince v Massachusetts, 321 US 158 (1944). ffi the government, public health o cials, 7. Employment Division v Smith, 494 US 872 (1990). and employers—may appeal to all but 8. F.F. ex rel. Y.F. v State of New York, 114 N.Y.S.3d 852 (N.Y. Sup. Ct. 2019). those with the most entrenched views. 9. Roman Catholic Diocese of Brooklyn v Cuomo, 141 Americans frequently have demon- S.Ct. 63 (2020). strated an ability to change their pre- 10. Burwell v Hobby Lobby Stores, Inc., 573 US 682, 739 (2014). vailing opinions in a short time, and 11. Department of Health and Human Services. Fact a sound public health strategy for sheet: explaining Operation Warp Speed. Available at: https://www.hhs.gov/coronavirus/explaining- workplace-based vaccination should be operation-warp-speed/index.html. Accessed predicated on prevention and persua- December 22, 2020. 12. Department of Health and Human Services. Trump June 2021, Vol 111, No. 6 sion grounded in science before Administration announces framework and ‘ ’ resorting to compulsion. leadership for Operation Warp Speed. Available at: AJPH https://www.hhs.gov/about/news/2020/05/15/ trump-administration-announces-framework-and- CORRESPONDENCE leadership-for-operation-warp-speed.html. Accessed December 22, 2020. Correspondence should be sent to Mark A. Roth- 13. Solinas-Saunders M. The US federal response to stein, JD, Institute for Bioethics, Health Policy and COVID-19 during the first 3 months of the Law, University of Louisville School of Medicine, outbreak: was an evidence-based approach an 501 East Broadway #310, Louisville, KY 40202 option? Am Rev Public Adm. 2020;50(6-7):713–719. (e-mail: [email protected]). Reprints can https://doi.org/10.1177/0275074020942408 be ordered at http://www.ajph.org by clicking the 14. Food, Drug, and Cosmetic Act, §360bbb-3, 21 USC. “Reprints” link. §360bbb-3. 15. Equal Employment Opportunity Commission. What PUBLICATION INFORMATION you should know about COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws. Available at: Full Citation: Rothstein MA, Parmet WE, Reiss DR. https://www.eeoc.gov/wysk/what-you-should- Employer-mandated vaccination for COVID-19. Am J know-about-covid-19-and-ada-rehabilitation-act- and-other-eeo-laws. Accessed December 18, 2020. Public Health. 2021;111(6):1061–1064. 16. Marr C. Workplace COVID-19 vaccine mandates Acceptance Date: January 3, 2021. targeted by state lawmakers. Bloomberg Law. DOI: https://doi.org/10.2105/AJPH.2020.306166 December 24, 2020. Available at: https://news. bloomberglaw.com/daily-labor-report/workplace- covid-19-vaccine-mandates-targeted-by-state- CONTRIBUTORS lawmakers?context=search&index=0. Accessed December 31, 2020. All authors contributed to the conceptualization, research, writing, and editing of the article. 17. Echazabal v Chevron USA, Inc., 536 US 73 (2002). 18. Ansonia Board of Education v Philbrook, 479 US 60 CONFLICTS OF INTEREST (1986). 19. Friedman v Southern California Permanente Medical M. A. Rothstein and W. E. Parmet have no conflicts of Group, 125 Cal. Rptr.2d 663 (Cal. Ct. App. 2002). interest to disclose. D. R. Reiss owns stock in GSK, 20. Occupational Safety and Health Act, §6(c), 29 USC which has a COVID-19 vaccine candidate in early §655(c). stages of testing. She also served as a volunteer,

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