Today is a big day for COVID guidance. Today’s prior alert focused on masks. This alert focuses on vaccines. We have received several questions regarding vaccines and vaccine mandates for both employees and members of the public because of the recent uptick in COVID-19 cases. This Client Alert highlights this area of concern for municipalities.
Here is a list of the Memoranda referenced in this Alert:
· July 6, 2021 Memorandum Opinion to the President from the Department of Justice
· June 28, 2021Technical Guidance from the Equal Employment Opportunity Commission
Q. Can a municipality or private employer require its employees to receive the COVID-19 vaccine?
A. Yes. Employers can legally require its workforce to receive the COVID-19 vaccine as a condition of employment subject to medical exemptions contained in the Americans with Disabilities Act (ADA) and religious exemptions contained in the Title VII of the Civil Rights Act of 1964 (Title VII). If staff are unionized, the employer will need to engage in the collective bargaining process before imposing this requirement.
In Massachusetts, many private employers have already enacted vaccine mandates including at least 20 colleges and universities and three major hospital systems.
Q. Has Massachusetts issued any orders mandating vaccines?
A. Various entities of the Commonwealth of Massachusetts, in its capacity as an employer, are enacting vaccine mandates for its staff in their offices and locations. Employees who work under the Massachusetts Office of the Treasurer and Receiver General (including the Alcoholic Beverages Control Commission, Massachusetts State Retirement Board, and Massachusetts Lottery) as well as the Office of the State Treasurer will be required to show proof of vaccination or submit to weekly testing once they return to the office. The Office of the Attorney General announced that staff who regularly interact with the public will be required to be vaccinated.
Additionally, the Commonwealth of Massachusetts, in its capacity as a regulating entity, announced on August 4, 2021, that direct and contracted staff at all 380 long-term care facilities regulated or operated by the Department of Public Health will need to be fully vaccinated by October 10, 2021, and that DPH will be enforcing the mandate. There are religious and medical exemptions to this requirement.
Q. What is the legal authority that allows municipal employers to mandate the vaccine?
A. There are no state or federal laws that prohibit a public employer from requiring mandatory vaccination of its staff during a public health epidemic. To the contrary, for more than 100 years, the courts have upheld the right of a local authority to require vaccinations when enabled by state law. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the United States Supreme Court held that local regulations mandating the vaccination of residents for the protection of public health or safety do not violate the United States Constitution. In 1902, the city of Cambridge passed an ordinance pursuant to Section 137 of c. 95 of the Revised Statutes of Massachusetts that required all adults be vaccinated against smallpox. Mr. Jacobson, a resident of Cambridge, objected to the local vaccine mandate. The Supreme Court upheld the Massachusetts law. The Court held that the state, under its constitutional police powers, had the authority to mandate the vaccine to protect public health. In response to Jacobson’s argument that the vaccine mandate infringed on his individual liberty interest, the Court held that sometimes individual interests must cede to state laws that protect the public health, so long as the restraint is not imposed in an arbitrary manner and does not go beyond what is reasonably required for public safety. The Court recognized, however, that some individuals would not be able to medically receive the vaccine, and the state could not mandate vaccine in those instances. The statute which is the basis of the Jacobson decision is still in effect. See M.G.L. c.111, §181 (“Boards of Health, if, in their opinion it is necessary for public health or safety, shall require and enforce the vaccination and revaccination of all the inhabitants of their towns, and shall provide them with the means of free vaccination. Whoever refuses or neglects to comply with such requirement shall forfeit five dollars.”). Exceptions to this statute are codified at M.G.L. c.111, §183.
Q. The vaccines are currently authorized under an Emergency Use Authorization (EUA). Do we need to wait until it is off-EUA and fully approved before enacting a mandate?
A: No. On July 6, 2021, the Office of the Legal Counsel of the U.S. Department of Justice issued a memorandum opining that private businesses and public entities are not prohibited from mandating vaccines that have only received approval for use under an EUA.
Q. How do we handle our employees’ medical or religious exemptions?
A: The federal Equal Employment Opportunity Commission (EEOC) has made it clear that if a municipal employer is going to mandate the COVID-19 vaccine and/or require proof of vaccination for its staff, it must continue to comply with the ADA and Title VII. Under the ADA, an employer must provide a reasonable accommodation to an employee who has a medical condition that makes it inadvisable for the employee to receive the vaccine, unless accommodating that employee poses an undue hardship on the employer’s business. Under Title VII, an employer must accommodate an employee whose sincerely held religious belief is incompatible with vaccination, unless accommodating the employee poses an undue hardship. The accommodation process and undue hardship analysis are similar in both instances (although there is a lower threshold for undue hardship under Title VII).
As an example, an employee may have a disability or medical condition that prevents them from receiving the vaccine (such as an allergy to an ingredient). The employer must engage with the employee to determine the scope of the reasonable accommodation that may be offered. The reasonable accommodation will require an individualized analysis of the employee’s position and the effect on the business of the municipality. One option may be to exempt the employee from the vaccine requirement; however, the employee’s presence in the workplace may pose a direct threat of transmitting COVID-19 in the office. Another option may be to allow the employee to continue to work remotely; however, that may not be feasible for positions that require direct interaction with the public. The Centers for Disease Control has issued guidance for employers regarding vaccinations and workplace accommodation. If the employer cannot provide a reasonable accommodation to an employee without undue hardship, the employer could place the employee on unpaid leave, allow the employee to use accrued leave, or potentially terminate the employee.
Q. What about employees who simply refuse the vaccine?
A. Employees who refuse the mandated vaccine (without requesting either a medical accommodation or indicating a sincerely held religious belief) have no legal basis to refuse. As a result, the municipal employer may discipline the employee or terminate their employment due to failure to abide by the terms and conditions of employment and/or insubordination (subject to disciplinary procedures including those contained in a collective bargaining agreement).
Q. Is mandating vaccines for employees good policy?
A. While not a legal question, there are a number of considerations regarding whether at this time it is good policy to require vaccines:
1. There is currently no FDA-approved vaccine product to prevent COVID-19. Employees may feel uncomfortable being required to accept a vaccine on EUA-status.
2. The FDA does not know how long any vaccine provides immunity benefits to COVID-19. It is possible, that like a flu shot, the public may need to be re-inoculated periodically.
3. It appears that some variants, like the Delta variant, can “break-through” vaccines and cause transmissibility and symptoms in some vaccinated individuals. Thus, even a vaccination requirement may not fully keep COVID-19 out of the workplace.
4. Even though the vaccines are on EUA status, FDA and empirical evidence to date indicates that the vaccines are extremely safe.
5. There is no evidence that booster shots are needed at this time. In fact, the World Health Organization has called for a moratorium on booster shots in favor of a higher percentage of initial vaccines.
6. No vaccine is 100% protective. Breakthrough cases of COVID-19 in vaccinated individuals remains rare and the evidence indicates that their symptoms are much milder.
7. Unvaccinated individuals remain the overwhelming population of hospitalized and dying patients from COVID-19.
Q. Can we require that members of the public receive the vaccine before entering municipal offices?
A. Municipalities must abide by Title II of the ADA, which requires cities and towns to provide qualified individuals with disabilities an equal opportunity to access municipal services, programs, and activities. The Department of Justice (DOJ), not the EEOC, enforces this section of the ADA. The DOJ has not released guidance regarding the applicability of vaccination requirements to entities covered by Title II. Further, the Massachusetts Commission Against Discrimination and the Massachusetts Office of the Attorney General, both of which enforce state laws, have not released guidance regarding the applicability of vaccination requirements to state anti-discrimination laws regarding public accommodation.
Nonetheless, Title II does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of the public entity when that individual poses a direct threat to the health or safety of others. When determining whether an individual poses a direct threat to the health or safety of others, the municipality must make an individualized determination, based on reasonable judgment, that relies on current medical knowledge to ascertain: the nature, duration, and severity of the risk; the probability that the injury will actually occur; and whether reasonable modifications of policies, practices, procedures, or the provision of auxiliary aids or services will mitigate the risk.[1] For example, based on the medical information currently available, COVID-19 tends to cause more morbidity and mortality in senior citizens. Thus, it may be reasonable to require members of the public to provide proof of vaccination if they want to access Council on Aging offices and programs, but it may not necessarily be reasonable to require members of the public to provide proof of vaccination if they want to use the Town waste transfer station. The municipality, however, will also need to determine whether the provision of auxiliary aids or services (for example, facial coverings or enforcing social distancing) will mitigate the risk of COVID-19 exposure in lieu of requiring proof of vaccination such that the resident may participate in or benefit from the town service or activity.
Q. How can municipalities reach-out to unvaccinated individuals and educate them on the benefits of receiving the vaccine?
A. While not a legal question, our best advice is to keep encouraging unvaccinated members of the public to become vaccinated. The Massachusetts Department of Public Health has resources available to local boards of health for education, outreach, and best practices regarding vaccine clinics.
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[1] Currently, the EEOC has determined that COVID-19 constitutes a “direct threat” in the employment context; however, the DOJ has remained silent with respect to this standard and Title II’s public access requirements. We believe that, currently, it would be appropriate to apply the EEOC’s determination of “direct threat” to public access requirements. However, as vaccinations become more prevalent and COVID-19 infection rates decrease, the EEOC may determine that COVID-19 no longer constitutes a “direct threat” and municipalities would need to make their own determination of threat level.
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