As discussed in further detail in our previous legal alert, with the vaccine against COVID-19 becoming more readily available, employers have been exploring whether a requirement that employees be vaccinated against COVID-19 would be feasible without violating federal or state civil rights laws applicable to the workplace, like Title VII of the 1964 Civil Rights Act (“Title VII”), the Americans with Disabilities Act (“ADA”), and the California Fair Employment and Housing Act (“FEHA”).
Both the Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”) have issued guidance on whether COVID-19 vaccination mandates are permissible under federal and state employment related anti-discrimination laws. According to the guidance provided by the EEOC and DFEH, employers can require COVID-19 vaccinations, so long as accommodations are made for those with medical conditions or sincerely held religious beliefs that prevent them from being vaccinated.
Guidance from the EEOC and DFEH did not directly address the significance, if any, of the currently available COVID-19 vaccines having only received Emergency Use Authorization (“EUA”) from the U.S. Food and Drug Administration (“FDA”) and thus being considered “unapproved” by the FDA. However, on June 28, 2021, the EEOC updated its guidance, stating that it is beyond its jurisdiction to discuss the legal implications of the COVID-19 vaccines being authorized for emergency use rather than having received full FDA approval.
While some questions remain, the distinction between an EUA and FDA-approved COVID-19 vaccination does not appear to specifically impact an employer’s ability to impose COVID-19 vaccine mandates under federal and state workplace anti-discrimination laws, provided an employer offers reasonable accommodations to employees who cannot get vaccinated for medical and religious reasons.
Implications of Emergency Use Authorization Status
As mentioned above, the three COVID-19 vaccines currently available are not yet FDA-approved. The FDA has the authority to issue EUAs for medical products in certain emergency situations to prevent life-threatening conditions caused by biological threats when no adequate, FDA-approved alternatives exist. When a medical product is made available through the EUA process, the federal law imposes certain conditions on the product’s distribution and administration.
A vaccine approved through the EUA process requires that individuals be informed of their “option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risk.” (21 U.S.C. § 360bbb-3 (e)(1)(A)(ii)(III).) Because the three currently available COVID-19 vaccinations have been approved through an EUA, it has raised questions as to whether this right to refuse a non-approved medical product prevents an employer from requiring a COVID-19 vaccine that is available only through an EUA.
Several federal lawsuits have been filed, including one against the Los Angeles Unified School District, challenging COVID-19 vaccination mandates on this basis. Whether any such lawsuit will succeed remains to be seen, but a federal judge in Texas recently rejected a claim that this provision of federal law invalidated a hospital’s COVID-19 vaccination mandate.
The Department of Justice (“DOJ”) has also recently issued an opinion analyzing whether federal law related to FDA emergency use authorization prohibits public or private entities from requiring individuals to be vaccinated against COVID-19 as a condition of employment, enrollment, participation, or some other benefit. According to the DOJ, these federal provisions only apply to entities administering EUA vaccines and require only that such entities inform potential recipients of certain information, including “the option to accept or refuse administration of the product.” Ultimately, the DOJ concluded that this federal provision giving an individual the option to refuse a EUA vaccine does not prohibit a public or private entity from imposing COVID-19 EUA vaccine mandates on employees or other third parties. (45 Op. O.L.C. __ (July 6, 2021).)
California Public Employment Relations Board Vaccine Mandate Decision
Employers with unionized workforces considering a COVID-19 vaccination mandate must also be aware of the collective bargaining implications of such mandates.
The California Public Employment Relations Board (“PERB”) has not yet decided a case involving a COVID-19 vaccination requirement, but, on July 26, 2021, PERB held that the University of California’s influenza vaccination policy that required all students, faculty, and staff living, learning, or working at any UC location during the 2020-2021 flu season receive the influenza vaccine was outside the scope of bargaining.
While PERB found that the UC’s decision to impose a flu vaccine requirement was a management right, and thus, it was not required to bargain before making the decision to impose the vaccine mandate, PERB held that the UC was still required to negotiate the effects of that decision on mandatory subjects of bargaining. Because employees who failed to comply with the vaccine requirement could be subject to discipline or be placed on unpaid leave, the mandate had foreseeable impacts on wages and discipline, both mandatory subjects of bargaining. As such, the UC was required to negotiate with the union over these effects before implementing the flu vaccination policy. PERB found that the UC’s refusal to bargain over the effects of its vaccination policy on discipline and wages was a per se violation of the UC’s duty to bargain in good faith. (University of California (2021) PERB Dec. No. 2783-H, p. 3.)
The University of California case involved a flu vaccine mandate and was decided under the Higher Education Employer-Employee Relations Act, but it nevertheless provides a sound basis for other public entities considering a COVID-19 vaccination requirement to take the position that the decision to require vaccinations during a pandemic can be made without bargaining under any of California’s public sector bargaining statutes.
Federal Government and California Cities Vaccine Requirements
In light of the rise of COVID-19 cases caused by the Delta variant, many cities have discussed imposing vaccination requirements with alternatives that fall short of a strict mandate. Many cities are exploring implementing a requirement that employees either show proof of vaccination or submit to regular testing for COVID-19. No city has yet issued any order outlining this requirement.
As there is no current requirement that unvaccinated individuals be regularly tested, it is unclear who will be responsible for the costs associated with the testing. Federal law requires insurers to fully cover the tests when ordered by a healthcare provider, however, routine workplace tests are exempt from this requirement. On Friday, July 30, 2021, the White House announced that the U.S. government will pay for its unvaccinated workers’ COVID-19 testing, however, it is unclear how other local municipalities will approach the situation.
New York City is the first city to issue an executive order that will require all persons newly hired by any city agency to provide proof of having received at least one dose of an approved COVID-19 vaccine prior to beginning their employment, except for those who obtain an exception due to medical or religious reasons through the reasonable accommodation process. After receiving a conditional offer of employment from a city agency, an applicant for employment must provide proof of having received at least one dose of an approved COVID-19 vaccine within a reasonable period. An applicant’s failure to provide the agency with proof of having received at least one dose of an approved COVID-19 vaccine will result in the agency revoking the conditional offer unless the applicant obtains an exception through the reasonable accommodation process.
San Francisco Department of Public Health Order No. C19-07y, most recently updated on August 2, 2021, requires that businesses and governmental entities with personnel in high-risk settings ascertain vaccination status for all personnel in high-risk settings who routinely work onsite, and that such personnel are fully vaccinated with any vaccine authorized to prevent COVID-19 by the FDA no later than October 13, 2021. Personnel who may enter or work in high-risk settings, even on an intermittent or occasional basis, are also subject to the requirement. Any personnel who is not fully vaccinated must get tested for COVID-19 at least once a week and wear a face covering. Personnel in high-risk settings are exempt from the vaccination requirement for either of the following reasons: (1) the individual is declining vaccination based on religious beliefs or (2) the individual is excused from receiving any COVID-19 vaccine due to medical reasons. The most recent Health Order from San Francisco does not address who will cover the costs of the regular tests for unvaccinated employees.
The City of Los Angeles will soon require city employees to provide proof of vaccination or undergo weekly testing to show they have tested negative for COVID-19. The plan is expected to be rolled out through a mayoral order, not yet issued. No details related to the cost of the program have been released. Currently, city departments have been directed to gather and report information about whether their employees are vaccinated and submit reports to the Personnel Department detailing that information.
The decision of whether to impose a COVID-19 vaccination mandate on employees is a complex one with significant legal implications and risks that should be evaluated based on the specific needs of individual entities and in consultation with legal counsel. If you have any questions regarding workplace vaccination policies, contact your OMLO attorney.
OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.