The availability of effective vaccines offers a major advancement in our emergence from the COVID-19 pandemic.  As a component of this progress, the determination of how to optimize the benefits of the vaccine among public sector employees also raises important leadership questions regarding its use.  Our great preference would be for members of our organizations to voluntarily accept the vaccine at a level that will achieve safety objectives.  In the interest of preparedness, however, we must also plan for and consider the risk of voluntary vaccination being insufficient to protect our employees and community.  In the event it could become necessary, this Client Alert is intended to assist organizations in evaluating the decision to require employees receive the vaccine and how to implement that decision if an agency determines it is necessary for any component of its employees.

Authority and Assessment

The issue of mandatory vaccines exists in the overlap of several areas of major state and federal legislation.  The specific terms of these statutes and how to operate with fairness within their requirements is discussed in the second portion of this Alert.  However, for senior leadership, the initial and critical determination central to this entire discussion is to make a reasonable and valid assessment of community and agency circumstances and whether assuring public safety makes mandatory vaccination unavoidably necessary.

The Code of Federal Regulations provides the authority[1] and a framework for evaluating the level of necessity and, in this context, mandatory vaccination of all or some critical element of the work force.[2]

1. The duration of risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur, and
4. The imminence of the potential harm.[3]

In weighing these dimensions of the COVID-19 threat, part of the basis for assessment is the experience employers gained following months of regrettably having to operate in this environment.  This provides a perspective to evaluate the effectiveness of safety protocols and the reliability of PPE.  It also gives context to forecasting the impact of community, agency, and detention population rates of virus transmission.

As with most consequential policy decisions, the best result will come from having greatest situational awareness.  This includes understanding the viewpoint of personnel presently providing field service delivery in this setting.  In this regard, the vaccine issue is within the environment of what is regulated by California meet and confer collective bargaining statutes.[4]  As a review, public employers are required to bargain about matters described as wages, hours, and working conditions.  However, that requirement is limited to some degree by the organizational authority (management rights) retained exclusively to the employer.

The scope of representation shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.

California Government Code section 3504.

The decision of whether to require vaccination has dimensions suggesting it is within the parameters of managerial control.  This is based on the degree to which implementation may be necessary for sustaining public safety in our respective communities.  However, a mandate also impacts continuity of employment and potential adverse employment consequences for anyone required to participate and who, without an otherwise legitimate exception, refuses to do so.

Further, where this specific issue involves an injection, it is a highly personal employment condition implicating what is customarily the right of the individual to make his or her own health decisions.

In addition, based on the current public discussions pertaining to availability and distribution priority, sufficient time may exist to initiate a meet and confer process, which should be undertaken in order of priority for different bargaining units, and hopefully to conclude that process by mutual accord before vaccination is readily available for administration.

For these reasons, currently, we recommend treating the issue as within the scope of bargaining and begin meet and confer if the direction an employer is taking is to require the vaccine for specific work groups.  Similarly, whether an agency has any intention of requiring vaccines, it may still be beneficial to initiate contact with bargaining units for the purpose of communication and exchange of priorities and concerns about this critical issue.

Several areas of discussion may surface as part of the bargaining process.  A sample of some of these considerations appears below for organizational planning purposes:

Meet and confer topics:

1. Provide a comprehensive explanation of the basis for the decision and the most recently available vaccine safety data;
2. Anticipated rate of voluntary compliance;
3. Extent of employee support or opposition;
4. Confirmation of work units requiring vaccine and those for whom inoculation is optional, evaluating presence at the workplace, and risk of exposure or transmission to others;
5. Internal delivery or vendor performing vaccinations;
6. Control of responses to screening questions and potential disability related content;
7. Assurances about protections of Workers’ Compensation;
8. Use of duty time/compensation to obtain the vaccine;
9. Use and effectiveness of PPE;
10. Additional available safety procedures;
11. Addressing issues of fairness related to employees who accept the vaccine absorbing exposure risk for personnel who refuse;[5]and
12. Accommodation options, where appropriate.

Discussion of MMBA Emergency Exception to the Duty to First Exhaust the Bargaining Requirement Prior to Implementing Mandatory Vaccination

The Government Code recognizes the reality that circumstances can come into existence where public employers must act with urgency.  The authority to move forward under emergency circumstances without having conducted a meet and confer process is defined below:

California Government Code section 3504.5 provides, in part:

(b) In cases of emergency when the governing body or the designated boards and commissions determine that an ordinance, rule, resolution, or regulation must be adopted immediately without prior notice or meeting with a recognized employee organization, the governing body or the boards and commissions shall provide notice and opportunity to meet at the earliest practicable time following the adoption of the ordinance, rule, resolution, or regulation.

The present pandemic conditions, particularly in jurisdictions where emergency orders are in place, may seem to trigger the authority for emergency action.  However, at the same time, media coverage and government announcements suggest that sufficient doses will not be available for a period of months.  Thus, while there is, and may continue to be, a general state of emergency concerning the pandemic, there may at the present time not be a need for emergency action regarding mandatory employee vaccination – at least for all bargaining units.  Thus, time is available for initiating a meet and confer process, and that time could be put to good use now.

Yet we exist in a time of change and uncertainty, and what today presents as some weeks or months before vaccines are available at least for first responders, could change tomorrow and your municipality may be presented with a need for emergency implementation of mandatory vaccination.  By beginning the meet and confer process now, and endeavoring to reach early agreement, an agency provides itself the best foundation for emergency action, if necessary.  In the event the bargaining process is protracted and not complete at the time vaccines arrive, the emergency implementation will have been preceded by a good-faith effort to reach agreement.[6]

Implementation of Decision to Require Vaccination Steps to Statutory Compliance

If the agency and the employee bargaining unit(s) reach agreement on the process of mandatory vaccination, all issues may seem to have been resolved.  However, it must be borne in mind that a union or employee bargaining unit cannot enter into a collective bargaining agreement which compromises or abrogates individual rights of its member employees.  In the context of mandatory vaccinations, even if agreed to by the union, individual employees may still retain the right, on certain bases, to object to and be excused from vaccination.

First, an employee might voice faith-based or religious objection to vaccination.  Alternatively, or in conjunction with a faith-based objection, an employee may assert a medical condition which contraindicates vaccination.

State and federal law require an employer to provide reasonable accommodation to the religious beliefs and exercise of an employee.[7]  Often this takes the form of requesting not to work on the day the employee’s faith recognizes as the Sabbath or a specific day of religious obligation; or, in other instances, may concern the maintenance of faith-mandated dress or grooming.

Over several decades of management service and employment law practice, it has been the experience of the authors of this Alert that faith-based requests by employees for accommodation are usually sincere.  However, as with any rule, there are going to be exceptions.

The best advice when confronted with a faith-based request for exemption you do not believe should receive religious accommodation is to objectively assess the request, with the assistance of your legal counsel, and make reasonable inquiries of those authoritative on the issue and the religious faith or denomination in question as to whether and to what extent there exists a religious proscription against, in this instance, vaccination.  As one point of awareness, some occasions do arise where a person has sincerely held beliefs that are not necessarily recognized as occupying a place of importance parallel to that of traditionally recognized religions and might require applying the accommodation process.[8]  To that end, a good primer on faith-based objections to vaccination can be found in a short article prepared by Vanderbilt University Medical Center, and which can be found at:

https://www.vumc.org/health-wellness/news-resource-articles/immunizations-and-religion.

As with religious accommodations, employee assertions of a need for medical or disability accommodations are many times made in good faith.  If an employee subject to mandatory vaccination claims a medical exemption, they can be required to provide documentation from a licensed health care provider[9] attesting to the existence of a medical[10] condition which contraindicates vaccination.[11]  Like religious accommodations, if there is an objectively reasonable basis for questioning the claimed medical exemption, thoughtful and patient inquiry can and should be made in consultation with legal counsel and a competent medical authority.

The duty to accommodate either a religious or medical exception to vaccination is governed by reasonableness.[12]  This will vary from agency to agency and on a case-by-case basis as what is an undue hardship[13] to one may not be to another.  Larger entities may, for example, have the flexibility to accommodate a religious or medical exemption more easily with temporary assignments to no contact or low contact duties for the exempted employee and until such time as the need for mandatory vaccination abates or ends.  There is, however, no legal duty to create work where no work exists which the exempted employee is able, with his/her limitations, to perform.

The vaccine issue involves an additional aspect of complexity not present in other workplace accommodation issues.  The Federal Food, Drug, and Cosmetic Act imposes on the Secretary of Health and Human Services as a requirement for emergency vaccine authorization:

(ii)        Appropriate conditions designed to ensure that individuals to whom the product is administered are informed—;

(I)        that the Secretary has authorized the emergency use of the product;

(II)       of the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown; and

(III)      of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks. (Emphasis added.)

See, 21 U.S.C. section 360bbb-3.

As we consider everything tied to the issue of undue hardship, it is important that we view it from all perspectives including those of the employee, the organization, and the community.  For example, in addition to employee safety, a public employee may have contact with a member of a vulnerable population in the community without that person’s consent, potentially exposing them to the virus.  Similarly, refusing a vaccine may create substantial Workers’ Compensation liability if an employee becomes seriously ill as a result of a duty-related exposure.  The implications of the Food and Drug requirements are not clearly understood at this point.  For all the reasons we have discussed, however, we do not believe this statute, or assuring workplace fairness related to disability or faith, are barriers to effectively guiding our organizations.  At the same time, each situation is very fact specific and we strongly encourage legal advice as part of developing a course of action.[14]

Helpful information regarding these issues may also be found in an EEOC article entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” and which can be found at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

Finally, as vaccination would, as discussed here, be a mandatory condition of employment, the employer must pay any associated costs for the vaccination and the employee needs to be compensated for the time necessary to receive the vaccination, whether that be during his/her workday, or outside of regular work hours.  Related to this is the probability that any side effects experienced from receipt of the vaccine would potentially be compensable under Workers’ Compensation laws.  Agencies are encouraged to consult with their Workers’ Compensation third-party administrators and legal counsel for further guidance on such claims.

As always, if you wish to discuss this matter in greater detail, please feel free to contact Paul Coble at (916) 771-0635 or Richard Lucero at (714) 446–1400 or via email at prc@jones-mayer.com or ral@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 29 CFR 1630.10(a):  In general. It is unlawful for a covered entity to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job related for the position in question and is consistent with business necessity.

[2] 29 C.F.R. 1630.2(r).

[3] These four elements should be read in the context of the risk of harm or potential harm from not receiving the vaccination.  Potential physiological reactions or side effects of being vaccinated are discussed later in this Alert.

[4] Cal. Gov. Code 3500, et seq.

[5] “To require Chevron to retain the plaintiff as a machinist without a respirator would have forced Chevron to revamp its duty assignments to accommodate whether particular assignments led to potential toxic exposure. The plaintiff’s coworkers also would have been required to assume his share of potentially hazardous work. Title VII does not require Chevron to go so far.”  Robinson v. Children’s Hosp. Boston, 2016 U.S. Dist. LEXIS 46024, *27 (D. Mass. April 5, 2016) (citations and quotations omitted).

[6] See Stationary Eng’rs v. San Juan Suburban Water Dist., 90 Cal. App. 3d 796, 802, 153 Cal. Rptr. 666, 669 (1979) for a discussion of actions taken while bargaining is occurring, “The trial court found unilateral changes in certain terms and conditions of employment had been made by the board during the time the “meet and confer” process was going on. These changes did not show lack of good faith since they were taken with prior written notice and plaintiffs did not appear to discuss the issues. This procedure is provided for in Government Code section 3504.5.”

[7] EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___, 135 S. Ct. 2028 (2015).

[8] 2 CCR 11060; See also, Friedman v. Southern California Permanente Medical Group, 102 Cal. App. 4th 39, 43 (2002).  Veganism was held not to be a religious creed within the meaning of the FEHA in a challenge to an immunization requirement against mumps, where the vaccine was grown in chicken embryos.

[9] “Licensed Health Care Provider” is the catch-all phrase used to refer to anyone licensed by the State to provide medical care, i.e., physicians, osteopaths, chiropractors, etc.

[10] “Medical condition” includes psychological disorders or illnesses.

[11] Inquiry may also be made as to whether the medical proscription against vaccination is permanent or transitory.

[12] The Americans with Disabilities Act of 1990, 42 U.S.C.S. § 12101 et seq., prohibits an employer from discriminating against an “individual with a disability” who, with accommodation, can perform the essential functions of the job. 42 U.S.C.S. § 12112(a), (b).  US Airways, Inc. v. Barnett, 535 U.S. 391, 393, 122 S. Ct. 1516, 1519, 152 L. Ed. 2d 589, 597, 2002 U.S. LEXIS 3034, *1, 70 U.S.L.W. 4285, 2002 Daily Journal DAR 4636, 67 Cal. Comp. Cases 424, 12 Am. Disabilities Cas. (BNA) 1729, 15 Fla. L. Weekly Fed. S 225

[13] Ibid.

[14] See Robinson v. Children’s Hosp. Boston, 2016 U.S. Dist. LEXIS 46024, *2 (D. Mass. April 5, 2016), granting summary judgement upholding a flu shot requirement for employees with access to patient-care areas against a religious discrimination challenge in a hospital affiliated with Harvard Medical School where the “patient population includes some of the most critically ill infants, children and adolescents in the world.”