Can employers mandate vaccines?
Yes, employers can mandate vaccinations. Individuals do have the right to “bodily integrity.” However, that right must give where employers have the duty to reduce workplace hazards – particularly where employees are returning to the workplace. This concern is even more heightened for employees with jobs where they interact with the public. Lawsuits are cropping up around the country to challenge vaccine mandates, but the courts have been siding with employers on the issue so far. In fact, the U.S. Supreme Court has upheld the state’s authority to mandate vaccines since 1905, when the Court blessed Massachusetts’ smallpox vaccine mandate in Jacobson v. Massachusetts.
What about mandatory testing instead of mandatory vaccines?
Rather than outright vaccine mandates, many public and private employers are considering mandatory testing for the unvaccinated. Under the Americans with Disabilities Act (ADA), mandatory medical testing of employees must be “job related and consistent with business necessity.” Employers may take screening and testing steps with employees entering the workplace because an individual with COVID-19 poses a direct threat to the health of others. Testing administered consistently with current CDC guidance will meet the “business necessity” standard.
In August 2021, Governor Northam signed Executive Directive No. 18, covering state employees and state contractors who “enter the workplace or who have public-facing work duties.” Effective September 1, 2021, these individuals must disclose their vaccine status to designated agency personnel. If individuals are not fully vaccinated or refuse to disclose their vaccine status, they must undergo weekly COVID-19 testing and disclose the results of those tests. Additionally, individuals who have not been fully vaccinated must continue to wear masks while indoors and conducting public business.
In September 2021, City Manager Jinks announced that the City of Alexandria would follow suit, requiring City employees who are unvaccinated or who choose not to disclose their vaccination status by September 26, 2021 to submit to weekly testing at no cost to the employee. However, Jinks clarified that the City may ultimately mandate COVID-19 vaccines and/or levy unvaccinated employees for the cost of weekly testing. Other localities like Arlington County are taking the same actions.
What if the state or the locality moves to a vaccine mandate?
If the Commonwealth or the locality does issue a vaccine mandate, the law requires two exceptions for: (1) ADA disabilities; or (2) a legitimate religiously held belief. The legal analysis for these exceptions can get very complicated, but the bottom line is that these exceptions are exceedingly narrow. As to medical exceptions, a person with an allergic reaction to vaccines must put their employer on notice of the issue and submit medical documentation to substantiate the claim of a disability that affects a “major life activity.” A moderate reaction would not suffice. Nor is it enough to have an allergy to an ingredient found in only one or two of the three major vaccine brands. Likewise, the religious exception must apply to all three vaccine brands. For instance, a Catholic who has a legitimate objection to the J&J vaccine may still be mandated to get either the Pfizer or Moderna vaccine.
What about other issues like workers comp and discipline?
IUPA benefits do not include workers compensation coverage, but there is a new provision of state law that Virginia public safety employees must be aware of. Virginia Code Section 65.2-402.1 lists infectious diseases that are presumed to be occupational diseases suffered in the line of duty and that are generally covered by workers comp for public safety employees. A recent amendment to this code section includes COVID-19 as one of the infectious diseases that would be covered by this presumption. However, an employee will be disqualified from workers comp coverage if the employer offers a COVID-19 vaccine, and the employee fails to be immunized. The only exception is if the employee obtains a written declaration from the employee’s physician that the immunization would pose a significant risk to the person’s health.
IUPA does provide representation for disciplinary actions. Nonetheless, if a vaccine mandate is issued consistent with applicable laws and regulations, the employer may lawfully resort to discipline.