COVID: Mandates in the Workplace

October 19, 2021
Taken from the October 2021 edition of the Wisconsin Police Journal

Jim Palmer, Executive Director
Roger Palek, Director of Legal & Field Services

More public employers in Wisconsin are exploring or have implemented requirements that public safety employees provide proof of vaccination and, absent such proof, submit to periodic COVID-19 testing. Some employers are simply mandating that all employees be vaccinated. As a result, the WPPA’s legal and field staff have received a barrage of questions from as to the legality of these types of orders. The following are some of the most frequently-asked questions, as well as the best answers currently available under the law.

Do employees have a constitutional right to refuse a mandate to be vaccinated against COVID-19?

No, the Supreme Court of the United States has upheld the constitutionality of mandatory vaccination programs. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Court held that a mandatory vaccination program does not violate the due process liberty rights of citizens so long as the program does not “go so far beyond what [is] reasonably required for the safety of the public.” 

The issue of mandatory vaccines has been addressed in two recent cases. In Bridges v. Houston Methodist Hospital, 2021 WL 2399994 (S.D.Tex. 2021), a Texas federal district court considered a case involving a private employer that had imposed a vaccine mandate on their employees. The federal court judge held that this was appropriate and dismissed the case. Since this decision was issued by a different federal judicial district and deals with a private employer, and not a public one, it would not necessarily bind the courts in Wisconsin. Nonetheless, it would serve as a persuasive precedent that a court could rely upon in deciding a case arising out of this state, so it cannot be entirely dismissed.

The second case is in the Seventh Federal Circuit that includes Wisconsin. In Klaassen v. Trustees of Indiana University, 2021 WL 3281209 (C.A.7 2021), the Seventh Circuit Court of Appeals held that Indiana University could impose a mandatory vaccine on its students. Unlike the previous case, the Seventh Circuit decision is considered binding precedent on Wisconsin. While an appeal in this case was filed with the U.S. Supreme Court, Justice Amy Coney Barrett denied that request without an opinion on Aug. 12, 2021, SCOTUS Application (21A15). While not reading too much into it, the fact that Justice Barrett, arguably the Court’s the most conservative justice, summarily denied the appeal in this fashion may say something about how the high court views these cases. 

If a public employee declines to be vaccinated, can the public employer require the employee be tested for COVID-19? 

Yes, subject to collective bargaining, federal law allows for mandatory testing. Guidance from the Equal Employment Opportunity Commission (EEOC) states, “An employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.” The bottom line is that a public employer’s right to manage the terms and conditions of employment of their employees can only be restricted by a contract or a specific statute. The is no law in Wisconsin that restricts mandatory vaccines for public or private employees. 

Do public employees have medical privacy rights when a public employer requires proof of vaccination? 

Yes. The EEOC has stated that “the ADA [Americans with Disabilities Act] requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination.” 

What mandatory bargaining issues are at play if an employer mandates vaccination, mandates proof of vaccination, or requires periodic COVID-19 testing for the unvaccinated? 

The California Public Employment Relations Board was the first labor board in the country to address the issue. Earlier this year, in AFSCME v. Regents of the University of California (Cal. PERB 2021) PERB Decision No. 2783-H, it determined that some of the mandatorily-negotiable effects would include: (1) discipline and job security; (2) safety; (3) PPE & testing as condition of employment; (4) health benefits; (5) costs of vaccination; (6) leave for obtaining vaccination; (7) leave for side-effects of vaccination; (8) costs of testing the unvaccinated; (9) frequency of testing the unvaccinated; (10) medical privacy issues, both as to vaccination verification and testing for the unvaccinated; (11) procedures for “proof” of vaccination; (12) procedures for testing the unvaccinated; (13) incentives to get vaccinated; (14) scheduling impacts on staffing and safety; and (15) working conditions for the unvaccinated. While the Wisconsin Employment Relations Commission (WERC) has not yet considered any cases involving COVID-related mandates, the California PERB is widely influential and persuasive in other states. As such, it is likely that the WERC will decide this issue in similar fashion.

Can we demand to negotiate? 

The WERC generally holds that changes in terms and conditions of employment are mandatory subjects of bargaining. While the National Labor Relations Board (NLRB) has not yet considered a case involving a mandatory vaccination requirement, there are decisions that offer some guidance on this issue. For example, the NLRB has found that requiring employees to take drug tests of any kind is a mandatory subject of bargaining. Johnson-Bateman, Co., 295 NLRB 180, 193 (1989) (“drug/alcohol testing constitutes an extraordinary incursion into highly sensitive matters which could directly affect the employees’ continued employment”). 

If an employer has a mandatory vaccination program, must it provide reasonable accommodations to employees on religious, disability, and/or pregnancy grounds? 

Yes, if the employee meets certain legal thresholds for establishing a religious belief or disability. Employees wishing to resort to these exemptions will likely have to do more than simply stating some general religious belief for medical condition alone. An employer may require the employee to produce proof of the tenets of his or her religion that forbids vaccination, or medical proof that vaccination is inconsistent with the employee’s disability or pregnancy. Once that legal threshold has been met, a public employer’s accommodation need only be “reasonable,” meaning that the employee is not entitled to the accommodation of their choice. That means that a public employer could, for example, reassign an employee to a different position and/or require the employee to wear a mask. A public employee who refuses those reasonable accommodations is subject to termination. E.g., Horvath v. City of Leander, 946 F.3d 787, 792 (5th Cir. 2020). Termination may also be appropriate where the accommodation creates an “undue burden” on the employer.

It’s worth noting that no major religious denomination has taken any kind of public stand opposing vaccination. This will likely make it difficult for a member to prove the tenets of his or her religious opposition to these COVID-related mandates – especially if the member has undergone other vaccinations in the past without objection.

Some of the vaccines only have “emergency use” approval from the Food and Drug Administration (FDA). Aren’t there FDA statutes on emergency approval that forbid mandatory vaccination programs in the workplace? 

No. A recent federal court decision held that the emergency use status of COVID-19 vaccinations under FDA statutes does not preclude mandatory vaccination programs at work. Bridges v. Houston Methodist Hospital, Case No. 21-CV-01774 (S.D. Tex. 2021). On July 6, 2021, the United States Department of Justice issued an opinion letter to the same effect, ruling that “Section 564(e)(1)(A) (ii)(III) of the Food, Drug, and Cosmetic Act concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.” In addition, with Pfizer’s vaccine having already been approved and the approval for the Moderna and Johnson & Johnson vaccines expected soon, any emergency approval argument will be wholly without merit.

What options are available to a public employee who gets sick after being vaccinated? 

An employee may wish to file a worker’s compensation claim, seek any COVID leave available through their employer, and, if needed, look to use their sick leave banks. To be successful in a workers’ compensation claim, the employee would have to prove that his or her illness was caused by the vaccine, which is a difficult bar to satisfy.

Does the federal Genetic Information Nondiscrimination Act (GINA) apply to vaccines? 

No. The EEOC’s guidance explains that because the pre-vaccination medical screening questions that accompany receipt of any of the currently available vaccines do not ask about an employee’s genetic information, an employer may ask these questions without violating the GINA. 

Are mandates prevented by the Occupational Safety and Health Act? 

No. There are no occupational laws to stop a mandatory employer vaccine program. In fact, employees can likely file complaints with OSHA if an employer does not institute a vaccine or testing workplace requirement to safeguard its personnel. 

Are employees to be paid for time spent getting a vaccine? 

State and federal wage and hour laws do not specifically address vaccines. However, in the case of an employee mandate, there does not appear to be any way for an employer to refuse to pay for the time needed to get vaccinated. This may provide the best foundation for a contractual grievance. Nonetheless, it does not alleviate the employees’ need to comply with the directive. 

I have heard about recent cases in New York, Pennsylvania, Washington, and Illinois in which unions are seeking injunctions to temporarily halt the imposition of some COVID-related mandates. Do any of these cases provide a basis to do something similar here in Wisconsin? 

No. In the New York case, a group of health care workers successfully obtained a temporary injunction to prevent a vaccination mandate by their employer from taking effect until the court can decide the case on the merits. The health care workers are arguing that because the mandatory vaccination requirement does not allow for any religious exemptions, it violates a specific religious exemption state statute. Additionally, the New York mandate does not provide for periodic testing as an alternative to the mandatory vaccination requirement. By contrast, Wisconsin does not have a religious exemption statute to use as the basis for a complaint. Additionally, municipalities implementing vaccination mandates are wisely providing a periodic testing alternative.

In Pennsylvania, a union that represents corrections officers in the state prison system recently asked a state court to intervene in a dispute over the governor’s mandate that they all get coronavirus vaccines or submit to weekly testing. In a complaint filed in mid-September, the union requests that the court issue a preliminary injunction to end mandatory testing unless inmates, visitors, and outside vendors are also subject to the requirement. According to the complaint, the state’s lack of consistency creates a dangerous work environment. While that may be arguably true, it does not explain how that should translate into not having any vaccination or testing requirements at all. In Wisconsin, the state generally does not have the authority to mandate vaccinations for the general public, except in school and daycare settings or in a declared state of emergency. Similarly, while local rules may be more stringent than state regulations, there is nothing that requires Wisconsin’s governments from mandating vaccines to everyone or no one at all. In fact, a local government’s rules need only be reasonable and necessary to help suppress something like a disease. In other words, the equity argument being used in Pennsylvania would not have any utility whatsoever in this state.

Following the lawsuit’s filing, the public response has not been favorable, with critics publicly asserting that the only people risking the health and safety of the officers are the officers themselves. 

Also occurring in mid-September, the Washington state troopers, correctional officers, ferry workers, and other public sector employees filed a lawsuit to try to overturn Gov. Jay Inslee’s COVID-19 vaccine mandate, which they argue is unlawful and unconstitutional. The lawsuit alleges that the penalty of being fired for not getting the vaccine is “arbitrary and capricious,” especially for employees who can work from home or have natural immunity from having previously contracted COVID-19. The mandate in Washington does allow for religious exemptions, but it does not provide for a testing alternative. 

In Wisconsin, the courts have determined that an action is arbitrary and capricious if it “lacks a rational basis and is the result of an unconsidered, willful, or irrational choice rather than a ‘sifting and winnowing’ process.” As such, while there may be grounds to contest an individual officer’s termination – perhaps on the argument that progressive discipline was not utilized – those cases will have to be evaluated on a fact-specific, case-by-case basis. Nonetheless, the arbitrary and capricious argument would not be a proper foundation upon which to challenge the constitutionality of a COVID-related mandate in Wisconsin. 

Lastly, the Teamsters union in Illinois filed a federal injunction in the Seventh Circuit in the Northern District of Illinois on July 19, 2021. The Teamsters were trying to halt a mandatory vaccine issued by a government employer. When they requested negotiations, the employer ignored them. The Teamsters asked the court for an injunction to stop implementation until after bargaining could occur. The federal judge denied the injunction request and declined to block the mandate’s implementation.

Conclusion

Many of the issues surrounding COVID-19 are contentious and politically-charged. This article is an assessment on the state of the law and nothing more. In the event that your employer takes steps to implement a COVID-related mandate in the workplace, you should not delay in contacting your business agent immediately, so that our legal and field staff can analyze the matter and protect your rights.