Law Office of Heidi Meinzer, PLLC

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Vaccine Mandates: Can My Employer Really Make Me Get Vaccinated?

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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.

Why IUPA

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IUPA is one of the most influential voices for law enforcement, as the only union chartered exclusive to give a voice to public sector law enforcement officers.  IUPA’s mission is to fight tirelessly to ensure that LEOs maintain rights and receive pay and benefits they deserve.  

With extensive collective bargaining experience, IUPA is uniquely positioned to provide support to locals to get the most for their members in negotiations.  ACOP/Local 5 has opted for full service, which provides the local with advice, representation and counsel in collective bargaining, impasse proceedings, and other administrative proceedings such as unfair labor practice proceedings related to negotiations.  This means that the Local and the officers will not need to pay out of pocket for an attorney – a huge benefit as Alexandria takes the plunge into collective bargaining for the first time in many decades.  Fortunately, ACOP/Local 5’s counsel, Heidi Meinzer, is one of the only attorneys in the Commonwealth of Virginia with experience on this front.  Heidi’s connections and collaboration with IAFF and AFSCME have laid the foundation for strong protections under Alexandria’s new collective bargaining ordinance.

IUPA membership also provides thorough coverage to individual members.  In today’s climate, law enforcement officers around the country are rightfully concerned about increased civil and criminal exposure.  It is more important than ever to join a strong union that provides individual members with comprehensive coverage for administrative and disciplinary proceedings, criminal investigations and prosecutions, and indemnification and defense in civil matters.  Membership in the Alexandria Committee of Police/IUPA Local 5 provides unparalleled coverage in all three areas. 

For administrative and disciplinary proceedings, IUPA provides legal counsel to advise and represent members.  For criminal and civil proceedings, IUPA has teamed up with the Legal Defense Fund (LDF) operated by the Peace Officers Research Association of California (PORAC) to offer unparalleled coverage and indemnification.  PORAC’S LDF serves more than 135,000 public safety members nationwide with a reserve of over $30,000,000.  LDF provides coverage for criminal and civil matters involving acts or omissions within the scope of LEO employment.  PORAC’s membership is exclusive in areas that have an IUPA local, meaning that other organizations operating in the same locality as IUPA will not have access to LDF’s benefits.  ACOP/Local 5’s counsel, Heidi Meinzer, is an LDF panel attorney.  Because she lives and works less than a mile from APD Headquarters, she can respond instantly to any emergency calls.

On top of the coverage mentioned agove, IUPA provides its members with legislative support on local, state, national levels.  IUPA’s General Counsel Office provides training and legal updates to locals’ leaders, attorneys and members.  IUPA’s Secretary/Treasurer Office provides training to locals on budget and financial issues.  IUPA’s Communications State provides public information support, research, and publication to assist its locals.  IUPA membership also provides its members and their families with additional savings through Union Plus’s Perks.

Alexandria Becomes First to Pass Collective Bargaining Ordinance

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During the April 17, 2021 Public Hearing, City Council took up and passed Virginia’s first collective bargaining ordinance under a 2020 law allowing localities to authorize collective bargaining for its public employees.  Due in great part to the close and harmonious collaboration between IUPA, IAFF and AFSCME representatives and legal counsel, this ordinance grants City employees strong and comprehensive bargaining rights. 

The collective bargaining ordinance grants city employees a broad scope of bargaining beyond mere wages and benefits.  The scope will cover all terms and conditions of employment except discipline.  As to discipline, IUPA is already working with IAFF and AFSCME on revisions to Alexandria Regulation 6-21 to ensure a fair and impartial process to resolve disciplinary and other grievance proceedings.

The ordinance defines the police bargaining unit to grant bargaining rights to all officers/detectives, sergeants and lieutenants.  City Council resisted the City staff’s recommendation to break up the police and fire bargaining units by adding “supervisory” bargaining units out of conflict of interest concerns.  However, conflict of interest issues are very rare and can be addressed easily if they do occur.  Jurisdictions locally and across the nation typically have a single bargaining unit for police and fire without issue. 

There is strength in numbers – which is the very point to collective bargaining.  It is an exciting time for City employees to gather together to ensure that they are treated fairly.  Other localities have been watching the progress here in the City closely, so these efforts will do a great deal to positively impact public safety and other employees throughout the Commonwealth!

March 2021 Update on Status of Alexandria’s Collective Bargaining Ordinance

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At the March 9, 2021 Legislative Meeting, City Council put forward the version of the collective bargaining ordinance it proposes to be voted on at the public hearing on April 17, 2021.  During that meeting, City Council made significant breaks from the staff’s proposal for the ordinance, offering amendments to the staff’s ordinance that grants employees much more comprehensive rights.  

These proposed amendments were the direct result of collaboration between and lobbying by IUPA, IAFF and AFSCME representatives and legal counsel.  The specific areas where City Council agreed with the unions and provided much more substantive rights include:

  • Expanding the scope of bargaining beyond mere wages and benefits, to include “hours, and other terms and conditions of employment, including procedures to resolve employee grievances, but excluding discipline”;
  • Removing overreaching by the city manager, for instance by not allowing him to have the “sole and final determination” about who would be a managerial employee or supervisor and taking away the city’s ability to withdraw recognition of an exclusive bargaining unit;
  • Expanding the bargaining unit for police to include Sergeants and Lieutenants, and for fire to include Captains and Lieutenants;
  • Requiring that the exclusive bargaining agents have a say in termination of the Labor Relations Administrator and periodic review of the ordinance; and
  • Rejecting the city staff’s impasse recommendation of nonbinding mediation and providing an impasse procedure proposed by the unions that would involve mediation, then fact-finding and a recommendation before City Council to resolve the impasse.

IUPA, IAFF and AFSCME will continue to collaborate to identify other potential revisions in the ordinance prior to the final public hearing on the ordinance on April 17, 2021.

Qualified Immunity

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In two different 2021 bills, the Virginia General Assembly tried to remove qualified immunity for law enforcement officers.  Fortunately, both of these efforts failed.  However, all signs point to the fact that the legislators will try again in future sessions.

HB2045, introduced by Delegate Bourne, would have created a civil action for deprivation of a person’s rights by an officer, and would have stripped an officer and the employer of the defenses of sovereign immunity and qualified immunity.  Fortunately, the Civil Subcommittee of the Courts of Justice Committee voted 6-2 to lay the bill on the table and it never proceeded to a full vote in the House of Delegates.  However, the Subcommittee expressed the desire to send this issue to the Virginia State Crime Commission, so we likely have not seen the end of this effort to abolish qualified immunity for officers.

SB1440, patroned by Senator Surovell, would have created a civil action to make an officer liable to any injured person for any injuries sustained as a result of a violation of Code Section 19.2-83.3.  That code section was passed in the 2020 Special Session to add definitions for “deadly force,” “deadly weapon,” “excessive force,” “kinetic impact munitions,” and “neck restraint.”  The bill also would have imposed liability on the officer’s employer.  Although this bill did not use the terms “qualified immunity” or “sovereign immunity,” the bill in effect would have eliminated those defenses by imposing strict liability for statutory violations in Section 19.2-83.3.  Civil actions authorized by SB1440 would have entitled a successful plaintiff to compensatory damages, attorney’s fees and possibly punitive damages.  Fortunately, this Senate Judiciary Committee voted to pass this bill by indefinitely 9-5.  Once again, we will probably see this bill or a similar bill in future sessions.

Law enforcement officers around the country are rightfully concerned about efforts by legislators and courts to remove defenses and increase their civil liability exposure.  The best way for officers to protect themselves is to join unions or other organizations that provide extra protection in criminal investigations and prosecutions and from civil liability.  One of the very best in the country is the Legal Defense Fund (LDF) operated by the Peace Officers Research Association of California (PORAC).  [add link:  https://poracldf.org/about]

PORAC’S LDF serves more than 135,000 public safety members nationwide with a reserve of over $30,000,000.  LDF provides coverage for criminal and civil matters involving acts or omissions within the scope of LEO employment.  PORAC has teamed up with the International Union of Police Associations (IUPA) to offer membership to IUPA members across the nation, and this membership is exclusive for jurisdictions where IUPA has a chapter.  Here in Northern Virginia, we are fortunate to have IUPA chapters that offer this comprehensive protection. 

2021 Legislative Update

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The 2021 Legislative Session has just ended in Virginia. Here is an overview of public safety bills that survived and failed this session.

BILLS THAT PASSED BOTH THE HOUSE AND SENATE:

  • HB2004 (Hurst), FOIA records and criminal investigations: This bill would amend the Virginia Freedom of Information Act to require release of criminal investigative files relating to an investigation or proceeding that is not ongoing. Currently, release of those files are discretionary and not mandatory. There are exceptions to the requirement to release, including if release would interfere with an investigation or proceeding, disclose the identity of a confidential informant or law enforcement investigative techniques or procedures, or endanger an individual’s life or physical safety. This bill passed in the House 56-44, and passed the Senate with a substitute 23-16. The House initially rejected the Senate’s amendment, but later voted to agree 55-44. No other action has been taken on the bill at this time.
  • HB2031 (Aird), Facial recognition technology: This bill prohibits law enforcement agencies from purchasing or deploying facial recognition technology unless expressly authorized by statute. Any such statute must require that the agency maintain exclusive control of the technology, and keep any related data confidential and accessible only by a search, administrative, or inspection warrant. The bill has been enrolled and is on the Governor’s desk.
  • SB1119 (Reeves), Body Worn Camera System Fund: This bill creates the Body Worn Camera System Fund to assist law enforcement agencies with the cost of purchasing, operating and maintaining body worn camera systems. It passed the Senate 39-0, and the House passed the bill with an amendment with a vote of 97-1. The House amendment added a provision to sunset the fund in 2023. The Senate agreed to the House amendment, but no further action has been taken on the bill.

BILLS THAT FAILED:

  • HB1794 (Davis), Collective bargaining: This bill would have exempted hiring, firing and disciplining of local employees from collective bargaining. Fortunately, it was left in the House Labor and Commerce Committee.
  • HB1840 (Wyatt), Traffic stops and citations: This bill would have rolled back some changes from the session last year by allowing officers to stop motor vehicles or pedestrians in certain situations. This bill was passed by indefinitely in the Motor Vehicle Transportation Subcommittee.
  • HB1875 (Coyner), Minimum LEO qualifications: This bill would have modified the minimum qualification for LEOs that prohibit an officer from serving if the officer has a conviction for a misdemeanor involving moral turpitude only if the conviction occurred within the last three years. The Public Safety Committee voted to strike this bill from the docket.
  • HB1941 (Rasoul), Required release of video or audio recording: This bill would have required release of video and audio recordings in the event an officer discharges a firearm, or uses a stun weapon or chemical irritant on a person resulting in death or serious bodily injury. This House Public Safety Committee reported the bill 12-9, but the bill was sent to the Appropriations Committee where it failed to advance.
  • HB1948 (Levine), Duty to render aid and report wrongdoing: This bill would have required LEO on duty who witnesses another person suffering from serious bodily injury or a life-threatening condition to render aid, and would have imposed a duty to report acts of wrongdoing committed by another LEO on duty. This bill passed in the House 57-42, but failed to make it out of the Senate Judiciary Committee.
  • HB2045 (Bourne), Sovereign and qualified immunity: This bill would have created a civil action for deprivation of a person’s rights by an officer, and would have stripped the officer and the employer of the defenses of sovereign immunity and qualified immunity. Fortunately, the Civil Subcommittee of the Courts of Justice Committee voted 6-2 to “lay the bill on the table.” However, the Subcommittee expressed the desire to send this issue to the State Crime Commission, so we likely have not seen the end to the efforts to abolish or limit sovereign and qualified immunity.
  • HB2151 (Adams), Daytime execution of search warrants: This bill would have provided an exception to daytime execution of search warrants if LEOs lawfully entered, secured and have remained continuously at the location being searched. This bill was left in the House Courts of Justice Committee.
  • HB2196 (Mullin), Release of disciplinary records: This bill would have required release of law enforcement disciplinary records related to “completed disciplinary investigations.” Fortunately, the House General Laws Committee voted to table this bill 22-0.
  • HB2228 (Guzman), Workers compensation: This bill would have expanded the definition of “occupational disease” in the Workers’ Compensation Act to include injuries from conditions resulting from repetitive and sustained physical stressors. The House Labor and Commerce Committee reported the bill with amendments 13-9, but it failed to advance in the House Appropriations Committee.
  • HB2291 (Williams Graves), Civilian oversight bodies: This bill would have allowed civilian oversight bodies to oversee and issue advisory disciplinary determinations for law enforcement officers employed by a sheriff’s office. The Hose passed this bill 53-46, but the Senate Judiciary Committee voted 12-2-1 to pass the bill by indefinitely.
  • SB1306 (Morrisey), APO mandatory minimum: This bill would have eliminated the six-month mandatory minimum sentence for assault on a law enforcement officer, and would have allowed a jury or court to reduce the charge to a misdemeanor under certain circumstances. The bill also would have allowed a court to enter a deferred adjudication, and would have required a separate investigation by another LEO prior to charging a juvenile with APO. The Senate passed this bill 21-18, but the bill was left in the House Courts of Justice Committee.
  • SB1332 (Reeves), Warning before using deadly force: This bill would have eliminated the requirement for an officer to provide a warning prior to using deadly force. Rather, this bill would have added whether a warning was provided and whether the officer exhausted other options prior to using deadly force in the list of factors to consider the totality of the circumstances of the use of force. The Senate Judiciary Committee voted to pass this bill by indefinitely 9-6.
  • SB1361 (Reeves), Civilian oversight bodies: This bill would have required any person appointed to a law enforcement civilian oversight body to be a United States citizen, reside in the jurisdiction where he or she was appointed to serve, and not have a criminal record. The bill also would have required the appointee to complete a Citizen Academy with a basic firearms instruction course and attend a daytime and nighttime ridealong. The bill also would have required that any oversight body have at least two members with specialized knowledge in law enforcement activities or operations. The Senate Judiciary Committee passed this bill by indefinitely by a vote of 9-6.
  • SB1440 (Surovell), Civil action for unlawful acts of force or failure to intervene: This bill would have created a civil action and made an officer liable to any injured person for any injuries sustained as a result of a violation of Code Section 19.2-83.3. That code section was passed in the 2020 Special Session to add definitions for “deadly force,” “deadly weapon,” “excessive force,” “kinetic impact munitions,” and “neck restraint.” The bill also would have imposed liability on the officer’s employer. Although this bill did not use the terms “qualified immunity” or “sovereign immunity,” the bill in effect would have eliminated those defenses by imposing strict liability. The civil action would entitle a successful plaintiff to compensatory damages, attorney’s fees and possibly punitive damages. Fortunately, this Senate Judiciary Committee voted to pass this bill by indefinitely 9-5.