Update Note: Read Ron’s October 2021 article on Federal mandates here.
By Ron Holmes
You might be surprised to know that the States have had the authority since 1905 to mandate vaccinations for its citizens as a proper exercise of the police power to protect the public health.
Jacobson v. Massachusetts, US Supreme Court, 1905. The Justices acknowledged even then the basic tension between individual liberty and the common good, the same tension we experience today with the very real possibility of mandatory COVID-19 vaccinations. In 1905, the Justices determined that the public good outweighed individual liberty in the face of a public health crisis, and that would most likely be the same vote today. If you thought mandatory mask wearing was a volatile issue, you can imagine how volatile mandatory COVID-19 vaccinations will be.
Another issue all of us must address is whether or not private employers can mandate their employees receive the COVID-19 vaccination. The short answer is yes, with a couple of exceptions on a case by case basis. The sub-issue, and the one more difficult to address is: should employers do so.
Essentially two laws affect an employer’s right to mandate vaccinations. The first is Title VII of the Civil Rights Act of 1964, and more particularly religious grounds. One’s religious beliefs may prevent one from taking a vaccination. However, it has already been determined that Title VII covered employers are not required to accommodate religious employees if doing so involves more than a minimal cost. The cost of a COVID-19 surge within a company is more than minimal and, thus, the religious objection is not likely a winner. In fact, New York and California have eliminated religion as a valid exception on the basis that mandatory vaccinations do not single out religion and are not motivated by a desire to interfere with religion.
The second possible impediment to employer mandated vaccinations is the Americans with Disabilities Act, which protects again disability discrimination. The EEOC (Equal Employment Opportunity Commission) has already determined, based upon CDC and WHO guidelines, that COVID-19 poses a direct threat (a significant risk of substantial harm) to the health and safety of others and, thus, a person with a disability is not protected by the nondiscrimination provisions of the ADA. As a result, an employer does not have to make reasonable accommodations, which means the vaccination can be required despite an ADA objection.
What should employers do?
The bigger issue remains: should employers require the vaccination. Despite the power, the basic tension between individual liberty and the common good remains, which can make an easy decision a no-win decision (half support it and half don’t). Short of a mandate, there are employer action steps that can soften the emotional reaction and yet accomplish the greater goal of the common good.
We can help you with that.
You may contact Ron at 469.916.7700 x 105, or via our contact form.
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About Ron Holmes
His real estate law practice is as broad as it is deep. Mr. Holmes has served as lead counsel on real transactions all across the United States (more than twenty States), representing public and private companies, both domestic and international, in all manner of real estate transactions, including large scale multi-use land developments and high rise residential condominiums, to acquisitions and sales of operating property portfolios, office, industrial and retail leasing and virtually every other form of real estate development, construction, financing, investing and leasing.Learn more about Ron…