With the Food and Drug Administration (“FDA”) approving an emergency use authorization (“EUA”) for the Pfizer and BioNTech COVID-19 vaccine this past Friday, many around the country have hopes that the end of our national – and indeed, global – ordeal is in sight, and that a return to normalcy is within reach. For others, the EUA raises more questions than answers, as lingering concerns about side effects, safety, and transparency may persist.
While we continue to grapple with questions about how – and how soon – the COVID-19 vaccine will reshape our daily lives, the imminent availability of the vaccine raises a number of questions, specifically in the area of Federal labor and employment law.
While employers in the private sector, especially in the health care arena, have already been forced to consider the implications of making the vaccination a mandatory condition of employment, Federal employers and employees are accustomed to working under a slightly different set of rules. Whereas private employers are generally free to place non-discriminatory conditions and restrictions on employment, Federal agencies are generally not.
Since the vast majority of the public discourse around compulsory COVID-19 vaccinations is geared towards private sector employment, Federal employees may find themselves left out of the discussion, and unsure of what to expect in the coming months.
Can their Federal employer institute a policy requiring employees to get the COVID-19 vaccine? What could be the consequences of not getting the vaccine? Are there any exceptions Federal agencies would be required to honor?
This article will attempt to provide some clarity for Federal employees concerned that their continued employment may hinge on receiving the COVID-19 vaccine.
Federal Authority Over Vaccinations
Generally speaking, the Constitution left the individual states in control of determining how best to address matters of public health. For example, all 50 states and the District of Columbia maintain laws requiring certain vaccinations for students.
However, the Federal government still maintains significant authority over the regulation of vaccinations. While the Federal government has generally avoided passing legislation, regulations, or policies requiring vaccinations, it is not unprecedented. For example, members of the armed forces are subject to vaccination requirements, as are aliens seeking entry into the United States.
It is therefore possible for a Federal agency to determine that the COVID-19 vaccine is a necessary requirement for certain positions, especially those involved in public health care, public safety or federal corrections.
For example, healthcare providers who work for the Department of Veterans Affairs, who are charged with caring for our nation’s veterans may be required to receive a COVID-19 vaccine as a necessary requirement for their position to prevent transmission of the virus in VA hospitals.
Additionally, correctional employees with the federal Bureau of Prisons, who are charged with ensuring safety in our nation’s federal corrections system may be required to receive a COVID-19 vaccination to avoid virus outbreaks in our federal prisons.
Furthermore, the Transportation Security Administration may deem it necessary to require TSA Agents to receive COVID-19 vaccinations to prevent transmission of the virus to passengers in our nation’s airports.
However, it is highly unlikely that any agency could impose an agency-wide requirement that its employees receive COVID-19 vaccinations as a condition of continued employment without running into issues of the policy being overbroad. Moreover, even if an agency were to require employees in some positions to receive the COVID-19 vaccination, Federal law provides individual employees with certain protections from generally applicable policies.
Reasonable Accommodation: Disability Accommodation
One exception to a Federal agency’s hypothetical requirement to get the COVID-19 vaccine is an agency’s obligation to provide reasonable accommodations to employees with disabilities under the Rehabilitation Act of 1973.
An employee who notifies his or her employer of a disability preventing the safe administration of the COVID-19 vaccine and who requests an accommodation is entitled to participate in an interactive process with the agency to identify an accommodation that would allow the employee to continue performing his or her job duties. In the example of a mandatory COVID-19 vaccination, the simplest accommodation would be an exemption from the mandatory vaccination policy.
It should be noted that an employee is not automatically entitled to his or her preferred accommodation. If an employer can demonstrate that the accommodation would present an “undue hardship,” or if the employer determines that the employee would pose a “direct threat” to the employer, other employees, or the general public, the employer may not be required to exempt the employee from mandatory vaccination.
However, unless the employee were directly and personally involved in dealing with communities especially vulnerable to the spread of COVID-19, such as in the public health care, public safety or federal corrections arenas, it is unlikely that an agency could successfully deny exemptions from a mandatory vaccination policy as a reasonable accommodation where a disability prevents the safe administration of the COVID-19 vaccine.
Reasonable Accommodation: Religious Accommodation
Another possible exception to an agency’s hypothetical mandatory COVID-19 vaccination policy can be found in Title VII of the Civil Rights Act of 1964.
As with disability accommodations, Federal employers are required to provide reasonable accommodations to employees on the basis of their “sincerely held religious beliefs.” An individual’s objection to receiving the COVID-19 vaccine that is not based on a sincerely held religious belief is not enough. Once an employee notifies his or her employee that their sincerely held religious beliefs conflict with receiving the vaccine, the employer is obligated to engage in the interactive process with the employee to identify a reasonable accommodation for those beliefs.
Again, an employee’s preferred accommodation is not guaranteed to them as a matter of right. An agency that can demonstrate that the accommodation would present an “undue hardship” would not be required to exempt the employee from a mandatory vaccination requirement.
However, while the “undue hardship” requirement is easier for an employer to meet in the religious accommodation context than with disability accommodation, an exemption to a mandatory vaccination policy is unlikely to create an “undue hardship” for agencies outside of the most extreme circumstances involving employees with face-to-face interactions with vulnerable communities highly susceptible to the transmission of COVID-19.
While Federal agencies in theory have options available to them in making the COVID-19 vaccination mandatory for employees, in practice it is highly unlikely that any agencies will or should do so, with the possible exception of certain public health care Federal positions closely engaged with vulnerable communities.
Federal agencies already encourage rather than require seasonal influenza vaccinations, and, while COVID-19 has proven itself deadlier and less predictable than the flu, the COVID-19 vaccination is in EUA status with uncertain long-term effects. Once agencies also factor in the potential costs associated with litigation over adverse actions, possible negative publicity, and employee morale issues, among other factors, the most prudent course of action for agencies to take is to encourage voluntary COVID-19 vaccination.