So, you think you are sovereign over your own body? Not so fast, Sparky. What about employers mandating the injection of the experimental COVID “vaccines”?
EUA and Mandates
First, the current COVID-19 vaccines, Pfizer and Moderna, are authorized under an emergency use authorization (EUA), not approved through the regular FDA process. There is legal uncertainty as to whether it is possible to mandate a vaccine under a EUA.
I am more inclined to think that for employers, at least, it is probably legal to require a vaccine under a EUA – or at least, such an employer would have a good argument in court, though it’s unclear which way a court will decide.
Four things support an employer mandating vaccines.
The law does not address employers at all. It speaks to vaccine recipients, administrators, and the secretary, but does not directly impose anything on employers. In a reality in which employers normally would be able to impose a vaccine requirement, reading a prohibition into a law that doesn’t explicitly contain one is a big step.
The law does mention that there can be consequences to removal.
In guidance to employers, the Equal Employment Opportunities Commission (EEOC) did not suggest a EUA is a barrier to a mandate.
Finally, we know that quite a few employers have mandated testing – and many of those tests were only authorized under a EUA, creating a precedent for mandating something under a EUA.
The best argument to counter this would be to view the vaccine under a EUA as experimental, and concluding that you cannot mandate an experimental vaccine.
There is no jurisprudence directly on this point since there has never been a vaccine provided for general use under a EUA – the only previously EUA for a vaccine was for anthrax for the military only.
In my belief, an employer mandating a vaccine is taking a risk of litigation on this issue, but has a reasonable chance of success in such litigation, though there is also a chance of losing.
Another potential limit on an employer’s ability to mandate vaccines may come from collective bargaining. If the workforce is unionized, the collective bargaining agreement may require negotiating with the union before requiring a vaccine. Unions may or may not support a mandate.
This will be a case-by-case issue, depending on what specifically the collective bargaining agreement says, and what the union’s position is. In at least one case, a court upheld an arbitrator’s ruling that a vaccine mandate could not be imposed without a collective bargaining agreement.
Unions opposing mandates in a case like this may not be anti-vaccine but may be acting to preserve their powers vis-à-vis management. But it is a potential limitation to COVID-19 vaccines employer mandates.
Americans with Disabilities Act and Mandates
The Americans with Disabilities Act (ADA) was created to protect the right of people with disabilities to access a variety of things, including workplaces. For the purpose of this discussion, the ADA requires employers with over 15 workers, in some circumstances, to provide reasonable accommodations to workers with medical conditions that make vaccines especially dangerous.
A vaccine contraindication would be a disability under the act, and the employer would have to provide accommodation unless it’s an undue hardship, which is a fairly high bar in this context, requiring showing a significant difficulty or expense.
Accommodation, however, would not necessarily mean that the employee gets to access the workplace in exactly the same way as everybody else, or gets to set the term. The employer can create an accommodation that protects the medically exempt worker and others, for example, requiring that employers who cannot be vaccinated wear extra personal protective equipment (PPE), provide for social distancing between them and others, if possible, or if working remotely is an option, prioritizing such employees for such work. The EEOC provides more details.
The balance is between not forcing the medically exempt individual – someone who cannot protect him or herself because of something beyond their control, a medical issue – to take a risk much higher than others by vaccinating, and protecting that person and others from Covid-19, in the absence of a vaccine.
Religion and Mandates
Most of the discussion so far applies to public and private employers alike. One area where there may be a difference is in relation to religion. Public employers are subject to constitutional limits, and private employers are not: you do not have constitutional rights against another private person, only against the government.
Public employers are subject, among other things, to the first amendment. Under our current jurisprudence, a government body does not need to give a religious exemption from a generally applicable law that does not target religion.
Here is the essence of what you need to know, structured under the three parts of sincere religious beliefs, reasonable accommodation, and undue burden.
Challenging a claim of sincere religious belief is full of pitfalls. An employer cannot require, for example, that an employee bring a letter from a priest, since that discriminates in favor of organized religion, or try to assess the reasonableness of the belief.
An employer can, however, require an employee to write an explanation of their belief, and query the employee about that – but here, too, an employer needs to be careful. The focus is on personal belief and its sincerity. It needs to be religious in nature, and sincere. That does not require believing in a God, but it does mean that the belief has to be about fundamental questions and part of a system of belief. “I think vaccines are dangerous” won’t cut it, even if the employee cites one or two verses.
The reasonable accommodation, again, does not have to be what the employee would prefer. In essence, courts are looking to whether the employer made a good faith effort to allow the employee to work in spite of the limits the belief imposes.
The undue burden here means something different than in the disability context, requiring an accommodation only if it’s less than a minimal cost. https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discrimination-workplace.
Liability
Employers need to consider their liability in two opposite contexts here. First, if an employer requires vaccines from employees, any adverse reactions to the vaccine, as a work requirement, will likely be covered by workers’ compensation. Ironically, this may put workers who are required to get the vaccine in a better position compensation-wise than others who may have been harmed by a rare side effect, since anyone else needs to go through the very un-generous Countermeasures Injury Compensation Program.
This is a lower bar than for the ADA.
Bottom line to answer the original question, No! You do not have sovereignty over your body… sorry about that. Welcome to the Brave New World.
