President Biden is expected to announce on Thursday July 29, 2021, that all federal employees and contractors will be required to be vaccinated against COVID-19 or submit to regular testing and mitigation requirements.
While federal law does not prohibit public agencies and private businesses from requiring COVID-19 vaccines, even if the vaccines have only been authorized for emergency use, the announcement from the President will almost certainly be challenged and face intense opposition.
Many were hoping that come the summer months, we would finally emerge from the COVID doldrums and begin to phase that portion of care out of our lives. With concerns of a highly contagious Delta variant beginning to spread, Biden’s team looks to be taking no chances with this rumored announcement. However, much like when COVID first hit the U.S, there still remains many questions as to how a vaccine mandate would affect those in the Federal employment sector.
Most likely, we will see this announcement for all Federal employees to be vaccinated or submit regular testing through an Executive Order (EO) by the President. While private employers are often free to place whatever non-discriminatory employment conditions and restrictions they want, should this mandate come through an EO, Federal agencies would have no choice but to abide by the order in requiring their employees to get vaccinated or submit frequent testing.
Regardless of how this announcement takes shape, many employees have already begun to speculate as to what this announcement could mean for them and what they should be expecting in the coming days and months.
So to what extent can the Federal Government require vaccinations for its employees? What consequences would/could an employee expect should they choose not to take the vaccine? What accommodations would Federal agencies be required to honor?
While there are many more concerns Federal employees may have about any Federal mandate for vaccinations, this article will hopefully provide some much needed clarity in regards to President Biden’s upcoming announcement.
Legal Aspects of a Vaccine Requirement
When it comes to addressing matters of public health, individual states are usually given the ability to act autonomously. A good example of this is how each state can choose to set certain vaccine requirements for students.
Generally, the Federal government likes to avoid passing any heavy-handed legislation when it comes to public health; however, this isn’t the first time the Federal government has gotten itself directly involved with mandating vaccines for Federal employees.
Around the turn of the century, service members were required to take the Anthrax vaccine. This vaccine was heavily disputed, and eventually, the Courts ruled that service members were not required to take the vaccine without the approval of the Food and Drug Administration (FDA) unless “the president orders them to do so.” However, President Biden has stated that he will not be imposing requirements on the U.S. military for COVID-19 vaccines.
Using the past as a guide for the future, we can assume that, should President Biden issue an order to make all Federal employees take the vaccine, it would be relatively justifiable. This isn’t to say it wouldn’t be well received, but it would be enforceable. Coupled with the fact that there are multiple vaccines that have received emergency use authorization in the U.S., there is nothing stopping them from a technical legal standpoint.
What Options/Rights do Federal Employees Have
It is important to note, however, that if agencies were required to have their employees vaccinated, there are certain protections in place to protect individual employees’ rights.
Disability Exclusions
One exception would be an agency’s obligation to give reasonable accommodations to a disabled employee should vaccines be required under the Rehabilitation Act of 1973. If an employee notifies their agency of their disability preventing them from the safe administration of a COVID-19 vaccine, the burden would shift to the agency to provide alternative options to the employee while they continue performing their job duties.
However, this doesn’t mean that an employee’s preferred accommodation will be the be-all-end-all for any discussion on this topic. Employers that can prove that any accommodations would provide an “undue hardship,” or pose a “direct threat” to its employees or the general public may not be required to exempt the employee from a mandatory vaccine. However, it is unlikely that any agency would deny a disability-based vaccine exemption should a reasonable accommodation exist.
Religious Exemptions
Another commonly talked about exception is whether a “sincerely held religious belief” would be enough to warrant accommodations under Title VII of the Civil Rights Act of 1964.
Similar to a disability, this would prompt an employer to work with their employee to find a reasonable accommodation based on their beliefs, and again, similar to a disability exception, if an employer is able to prove an “undue hardship,” they would not be required to grant an accommodation to the employee. One thing to note, however, is that it is much easier to prove an “undue hardship” for a religious exception than a medical one.
HIPPA
Lastly, one common misconception employees have about vaccine requirements is whether or not they would be covered from disclosing their vaccination status and/or COVID medical history under the Health Insurance Portability and Accountability Act (HIPAA). This is not true.
Oftentimes, employees confuse HIPAA with the Americans with Disabilities Act (ADA). HIPAA only covers you from your medical institution and other related institutions from disclosing your medical information without permission. The ADA only requires employers to be careful when collecting and disclosing employee medical information. Employers have every right to ask and collect information about anyone’s vaccination status.
Will this be challenged in Court? On what Grounds?
Most definitely. I expect there to be a lot of challenges from different employees, unions, and organizations over a vaccine mandate. We have even seen this in the past with the Anthrax vaccine I mentioned earlier.
For unions, a mandate for vaccinations and/or frequent testing will violate some unions’ collective bargaining agreements (CBAs). There would certainly be grounds for a case if an employee was under a contract that allowed them certain accommodations or exceptions that were violated as a result of this new order.
Most likely, someone will file an injunction on this in the next couple weeks—probably a religious organization—as I have already seen some of our clients raising religious concerns over this rumored announcement.
Understanding the Future Impacts
The issue of vaccine mandates and a new Delta variant of COVID extends well beyond just the federal sector, however, those conversations are often swept to the side as people choose to focus on the public sector and other topics. It is important to know your rights when it comes to your employment and how a mandate to vaccine could affect you. If you feel like your rights are being violated or have any additional questions, seek out proper legal counsel immediately.
