COVID-19 Vaccine Mandate FAQ

Across the United States, COVID-19 vaccine mandates are rolling out. Schools, colleges, employers, states, and health care facilities are requiring students, employees, and others to be vaccinated against COVID-19. Since the mandates have been announced, the employment and civil rights attorneys at Famighetti & Weinick PLLC have been busy fielding calls about individuals concerned about the vaccination requirements. Today’s Long Island employment law blog provides answers to Frequently Asked Questions about COVID-19 vaccination mandates.

• Can my employer require that I take the COVID-19 vaccination?

Generally, yes. At least one federal court as well as the federal government’s Equal Employment Opportunity Commission (EEOC), have suggested that employers can mandate that employees get the COVID-19 vaccine. Employers may be required to provide reasonable accommodations or exemptions for employees who cannot take the vaccine because of a medical condition or a sincerely held religious belief. General objections to the vaccine are not a lawful basis to refuse. We previously blogged extensively about this question. To learn more about the court decision concerning COVID-19 vaccination, click here. Our comprehensive blog about workplace vaccination requirements is here. Though we agree that it is not an ideal answer, a Texas court has suggested that if employees do not want to take the vaccine for reasons unrelated to a medical contraindication or religious belief, employees can quit and work for an employer that does not require vaccinations.

• Can my college/university require that students be vaccinated against COVID-19?

Generally, yes. Like workplace requirements, colleges and universities can require that students, faculty, and staff be vaccinated against COVID-19. At least one federal court has determined that such COVID-19 vaccination mandates do not violate the Constitution (notably, the Constitution applies only to public colleges, not to private schools). Also like workplace requirements, colleges and universities may have to provide reasonable accommodations for medical conditions or sincerely held religious beliefs. (See below).

• Does the Emergency Use Authorization mean that vaccine mandates are unlawful or unconstitutional?

To our knowledge, to date, no Court has determined that the EUA has any bearing on the lawfulness or constitutionality of vaccine mandates. Further, as of August 2021, the Pfizer vaccine has full FDA approval, so legal arguments based on FDA approval are not likely to be successful in court.

• How do I sue the governor or the state to stop the COVID-19 vaccination mandates?

Legal challenges to the COVID-19 vaccination requirements are likely to fail. In 1905, the United States Supreme Court ruled that a Massachusetts vaccine mandate requiring all citizens to be vaccinated against smallpox was constitutional. With the exception of minor push back recently from SCOTUS about the breadth of the meaning of the 1905 case, courts continue to cite to the Massachusetts case as binding legal precedent about states’ lawful ability to impose measures to control public health risks. Based on the 1905 case, we anticipate most, if not all, challenges to vaccine mandates to fail in court. Each case is different, however, and individual questions about legal challenges to vaccine mandates should be discussed with an experienced civil rights attorney.

• I am required to get the vaccine or to be regularly tested for COVID-19. Is that legal?

Generally, yes. The EEOC has suggested that viral testing for COVID-19 is permissible under workplace discrimination laws. In other words, tests which determine whether an individual is currently infected, are lawful. Antibody testing, however, may violate the Americans With Disabilities Act, because antibody tests do not confirm a current infection. So, in sum, regular testing for current COVID-19 infection is likely lawful. Moreover, courts will likely view the testing option as a reasonable accommodation for individuals who cannot get vaccinated and, practically speaking, many people would view it as a reasonable accommodation for individuals who do not want to get vaccinated.

• Does weekly COVID-19 testing violate any other laws, such as the FLSA?

Employers mandating COVID-19 testing may be required to pay employees for the time spent getting the testing and for the cost of the test. The Department of Labor suggests that employers must pay employees for time spent waiting for and receiving medical attention, which the employer directs the employee to get. Moreover, if COVID-19 testing is necessary for an employee to effectively perform his or her job, the employee must be compensated for taking time to get tested, even if done on a day off.

• What do I have to show to get an exemption from vaccination due to a medical condition?

To obtain an exemption from a COVID-19 vaccination mandate because of a medical condition, individuals must show that the vaccination is contraindicated for a medical condition for which the individual is diagnosed. This means that individuals cannot simply allege that they have a particular condition and that the individual is worried that the vaccine will be harmful based on the condition. Rather, a doctor should be able to articulate the particular danger that the vaccination poses to the person’s medical condition. Currently available information suggests that few, if any, medical conditions will adequately meet this standard, other than allergies to COVID-19 vaccination ingredients.

• What do I have to show to get an exemption from vaccination due to a religious belief?

Like medical exemptions, religious exemptions to vaccination must be particularized. In other words, individuals cannot say generally that their religious beliefs prohibit vaccinations. Rather, individuals should be prepared to describe the teachings and/or beliefs which form the basis of the objection to vaccination. Explanation from religious leaders may be helpful in describing the belief. Further, the religious belief must be sincerely held. Applicants requesting an exemption for a religious belief should be prepared to describe their adherence to their religion and other ways that they apply their beliefs to their life, such as for example, eating or not eating certain foods, or taking or not taking certain medications.

As issues related to mandatory vaccinations continue to emerge, our civil rights attorneys will update this vaccination FAQ. Be sure to check back frequently for updates, and subscribe to our social media pages to receive alerts about updates.

This FAQ is provided for general information purposes only and should not be accepted as legal advice for your particular situation. For specific questions about particular situations, speak to one of our attorneys at 631-352-0050.