Kara Sears
The COVID-19 pandemic has brought to light several contentious issues, one of which is vaccine mandates. While some people refuse to get vaccinated for medical or religious reasons, others are simply hesitant due to concerns about safety and efficacy. This has led to a debate about whether governments, employers, or educational institutions can legally require certain individuals to get vaccinated as a condition of employment or attendance. In the United States, for example, the federal government and employers are generally considered to have the authority to mandate vaccinations, especially in certain sectors such as healthcare and other front-line services. However, this topic is complex and multifaceted, with potential implications for human rights and religious freedom.
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What You'll Learn
Employers' rights to mandate
The COVID-19 pandemic has raised the question of whether employers can legally mandate that their employees receive vaccinations. While the federal government has the authority to mandate vaccinations, it is more likely that an employer will do so. This authority originates from the Occupational Safety and Health Administration (OSHA) and the Equal Employment Opportunity Commission (EEOC).
In the United States, the employment relationship is predominantly regulated by state law. In every state except Montana, employment is "at will", meaning that employers can fire employees for any reason or no reason at all. However, employers must also comply with federal and state human rights laws, which protect matters of "conscience". While applicable human rights law does not recognize all grounds upon which one might refuse vaccination, it does protect certain medical conditions and religious beliefs.
The Americans with Disabilities Act (ADA) prohibits employers from firing qualified employees because of their physical or mental disabilities. Similarly, Title VII of the Civil Rights Act prohibits employers from firing employees because of their religion. Therefore, employers must accommodate employees with disabilities or sincere religious beliefs, as long as these accommodations do not pose an "undue hardship" on their business operations. What constitutes an "`undue hardship` depends on the facts, including the work environment and the employee's personal medical history.
Employers who wish to mandate vaccinations must be prepared to address employees who refuse for unprotected reasons or who experience adverse medical reactions to the vaccine. In unionized workplaces, employer policies are subject to further considerations, such as collective agreement language and a reasonableness test. Employers should consult with an attorney to discuss the potential options and ensure that their vaccination policies are legally compliant.
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Employees' rights to refuse
Employees have the right to refuse to take a vaccine. However, the employer must properly inform the employee of the benefits of the vaccination through training. The employee also has the right to decide to take the vaccination at a later date if they so choose. The employer must make the vaccination available at that time.
In the case of COVID-19 vaccines, the federal government and employers have the authority to mandate the vaccination. However, the employer must accommodate each employee's disabilities, medical conditions, or religious beliefs. Depending on the employee's position in the workplace, employers can also suggest alternative solutions for employees refusing the vaccine, such as remote work, changing the physical workplace, or providing a leave of absence.
In the US, the Equal Employment Opportunity Commission (EEOC) has stated that a mandatory vaccination program is not forbidden under federal law but must consider specific legal obligations and nuances. According to a survey from August 2021, 33% of employers would terminate an employee immediately if they refused the COVID-19 vaccine without a viable reason.
While applicable human rights law doesn't recognize all grounds for refusing vaccination, employees may be entitled to an exemption from a mandatory vaccination requirement based on a disability or sincerely held religious belief. Such exemptions are considered reasonable accommodations barring undue hardship to the employer.
In unionized workplaces, employer policies are subject to a reasonableness test, and a mandatory vaccination policy may be deemed unreasonable if, for example, the intrusion into employee privacy by collecting personal health information outweighs the benefits of doing so.
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School and university mandates
In the context of the COVID-19 pandemic, the question of whether a vaccination can be mandated by law has been raised, with specific attention given to school and university mandates. While the federal government and employers have the authority to mandate vaccinations, it is more likely that an employer will do so, with the government instead taking a position of encouragement.
In the case of schools and universities, the situation is complex and highly contested. Hundreds of colleges and universities have embraced COVID-19 vaccine mandates for students and staff, but this has sparked opposition. Some groups are encouraging students, parents, and the wider public to pressure educational institutions into abandoning these mandates. They argue that there is no evidence that patients with prior COVID-19 infection benefit from the vaccination and that the long-term effects of the vaccine are unknown. Furthermore, they assert that there are already many successful COVID-19 treatments available and that the risks of the vaccines are being minimized.
However, it is important to note that there are existing school-entry vaccination laws, and all 50 states have some form of vaccination requirements, although these typically allow for exemptions. In the case of COVID-19 vaccines, the CDC has recommended that K-12 schools become vaccination sites, but this has been met with resistance. President Donald Trump signed an executive order barring schools and universities with COVID-19 vaccine mandates from receiving federal funds, and some states have taken steps to prevent the implementation of such mandates.
Despite the opposition, some universities have implemented COVID-19 vaccine requirements for students and staff, citing the need to protect public health. These institutions argue that the benefits of the vaccines outweigh the risks and that it is their duty to protect their community. In support of this, the Equal Employment Opportunity Commission (EEOC) has provided guidance on vaccine mandates for COVID-19, stating that employers should consider encouraging employees to get vaccinated rather than requiring it. The EEOC also noted that employees may be entitled to exemptions based on medical conditions or sincerely held religious beliefs.
Overall, the issue of vaccine mandates in schools and universities is a highly contested topic, with valid arguments on both sides. While some argue that it is a matter of medical freedom and unknown long-term effects, others emphasize the benefits of vaccination and the duty to protect public health.
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Military mandates
The COVID-19 vaccine mandate has been a topic of legal debate, especially concerning the military. While the federal government has the authority to mandate the vaccination, the question of whether to exempt military personnel has been a point of contention.
In the United States, the Department of Defense has required service members who were separated from the military for refusing the COVID-19 vaccine to sign a form acknowledging their voluntary separation or lapse in service before allowing them to re-enlist. However, some service members have refused to sign this form, arguing that they were coerced or forced out of the military due to the vaccine mandate.
The issue of religious exemptions to the vaccine mandate has also been a subject of litigation within the military. Several lawsuits have been filed by service members across different branches, arguing that the failure to grant religious exemptions violates their rights under the Religious Freedom Restoration Act (RFRA). These lawsuits highlight the ideological fractures between judicial deference to military decision-making and the scrutiny of individual religious beliefs.
In one case, a federal district court granted a preliminary injunction preventing the Navy from enforcing the vaccination requirements on 35 service members, but the Supreme Court later granted a partial stay, allowing the Navy to consider vaccination status in assignment and deployment decisions during the litigation process.
The situation with the Oklahoma National Guard has also raised legal questions about the power of the state governor to exempt the Guard from Defense Department vaccine mandates. While the governor has encouraged members of the Guard to defy the mandate, legal experts argue that this is a form of civil disobedience, as the Guard members are not subject to court-martial under the Uniform Code of Military Justice unless they are activated into federal service.
The military vaccine mandate has been a complex issue, with legal challenges and debates surrounding religious exemptions, voluntary separation, and the authority of state and federal governments.
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Human rights law
The short answer is yes, COVID-19 vaccinations can be mandated by law. However, there is no simple and straightforward way to do this. The main consideration is human rights legislation, which protects employees against discrimination on specified grounds. A mandatory vaccination policy has implications for those for whom a medical condition or religious belief makes vaccination impossible. While there is no absolute right to accommodation, employers have a duty to make reasonable efforts to accommodate employees' needs. This could include allowing employees with valid claims to work from home. A refusal to allow this could violate human rights law.
Applicable human rights law does not recognize all grounds upon which one might refuse vaccination. The bigger question regards so-called "conscientious" refusal, such as concerns about vaccine safety and/or efficacy. Because such grounds are unprotected by the relevant human rights legislation, they are unlikely to find much traction. In unionized workplaces, employer policies are subject to further considerations, such as collective agreement language and a reasonableness test. There are many things that may render a policy unreasonable, such as whether the intrusion into employee privacy by collecting personal health information is outweighed by the benefit of doing so.
In the specific case of Queensland, Australia, the state supreme court found that the COVID-19 vaccine mandate for police was unlawful and that for paramedics was ineffective. This decision was based on the state Human Rights Act, which only applies in Queensland, and on the way that Queensland decision-makers issued the mandate. This ruling has been celebrated by human rights advocates as a check on the actions of the government.
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Frequently asked questions
Yes, vaccines can be mandated by law. In the context of COVID-19, arbitrators have been divided about employer policies concerning mandatory vaccination, with some finding them to be reasonable and others disagreeing. However, the bigger question regards "conscientious" refusal, such as concerns about vaccine safety and efficacy. As these grounds are unprotected by relevant human rights legislation, they are unlikely to find much traction in court.
Yes, in most cases, employers can mandate vaccines. Generally, an employer's authority to do so originates from the Occupational Safety & Health Administration (OSHA) and the Equal Employment Opportunity Commission (EEOC). However, employers must also be mindful of not overreaching and violating the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
Yes, schools can mandate vaccines. However, this is a highly debated topic, with some arguing that vaccine mandates in schools usurp parental authority and burden students of many faiths. In the United States, the White House has ordered the Secretary of Education to provide a plan to end coercive COVID-19 school vaccine mandates, empowering parents and students to make their own decisions based on accurate data.
