SOME LEGAL QUESTIONS ARISE AROUND REQUIRING VACCINE

Employers, businesses can ask for proof of COVID-19 vaccination

The COVID-19 vaccine rollout continues to ramp up, and it’s ushering in a new phase of the pandemic.

But being on the cusp of a return to some kind of normalcy also comes with a host of legal flashpoints.

Questions over vaccine-based civil liberties, privacy and discrimination are replacing masks and business restrictions as a battleground for pandemic politics. Many of those questions are likely to be answered in the courts, with a raft of lawsuits expected to be filed in the coming months seeking to define the role the vaccine plays in reopening and protecting public life.

“A lot of those answers will come

into greater focus as we learn more,” said Houstonbased attorney Kevin Troutman, who leads the vaccine workgroup at the national employment law firm Fisher Phillips. “I do think we will see more litigation flashpoints when it comes to vaccine requirements and privacy issues.”

A year ago, the pandemic jolted the legal landscape, forcing courts to examine everything from government lockdowns to at-home work and school to workplace safety concerns. The introduction of the massive vaccine effort will be no different, as old laws are interpreted to fit a novel situation and new laws are drafted to respond to unforeseen complications, according to lawyers.

“For many of us practicing law for quite some time, this last year has been the hardest year for us,” said San Diego attorney Wendy Tucker, who practices labor and employment law at Procopio. “The laws are changing so quickly and so drastically, and we have no guidance. It’s hard to keep up and hard to give our best advice.”

The patchwork approach to the vaccine rollout, and the pandemic as a whole, also means federal law can conflict with state and local law.

Here are the most common questions attorneys are getting about the vaccine.

Can employers require vaccinations?

Generally, yes. Historically, certain employers have been able to require vaccinations, as long as the employer can show that such a mandate is “jobrelated and consistent with business necessity” or justified by a “direct threat” to the workforce, according to the Americans with Disabilities Act, or ADA.

Industries that might fall into that category are those that have direct contact with the general public (grocery stores), health care settings (hospitals) and jobs that are performed in close quarters of others (factories). Office workers who can perform their duties from home? Not so much.

However, the more pressing question may be: Can employers mandate it now?

The answer: Probably. The question has been raised because the Moderna, Pfizer-biontech and Johnson & Johnson vaccines — the only three currently approved in the U.S. — didn’t go through the usual formal FDA approval process but are being administered under emergency-use authorization.

Language in the emergency-use authorization says vaccine recipients “have the option to accept or refuse the vaccine.” Many labor-law experts are taking that to mean that the government can’t unilaterally force citizens to get vaccinated, but that private-sector employers can force workers to, given the broad discretion they have for dismissals under “at-will” employment doctrine.

That interpretation seems to mesh with recent guidelines issued by the U.S. Equal Employment Opportunity Commission and the state of California, which suggest that employers can mandate vaccines without outright saying so.

Employers that do mandate under the emergencyuse authorization are required to inform workers about the potential vaccine side effects, as well as the consequences of refusing to take them, according to Aaron Olsen, a San Diego employment law attorney at Haeggquist & Eck.

A vast majority of businesses are not mandating at this point, according to Troutman. But that may change as more people become vaccinated and businesses come back to life. The industries that are mandating the most are agriculture and food production, construction and health care, he said.

Some lawyers, including Troutman, are a little less certain about mandates for employees in the public sector.

“That’s going to play out in court, and we’ll see what the courts decide,” Troutman said.

Two federal lawsuits have already been filed on the issue.

A group that includes teachers, a counselor, a librarian and an electrician is suing the Los Angeles Unified School District over its requirement that employees be vaccinated, despite the vaccine not going through full FDA approval.

The lawsuit argues that the law that provides emergency-use authority “recognizes the well-settled doctrine that medical experiments, better known in modern parlance as ‘clinical research,’ may not be performed on human subjects without the express, informed consent of the individual receiving treatment.”

A detentions officer gave a similar argument in his lawsuit against a New Mexico county over its requirement that first responders be vaccinated.

Both cases are in the early stages of litigation.

Are there exceptions to a mandatory workplace vaccine order?

Yes, the law does provide exceptions for disabilities and religious beliefs. Merely stating that the vaccine isn’t trusted as safe is not enough, according to attorneys.

To qualify on disability grounds, the employee may be asked for a doctor’s note, and if the authenticity of the medical opinion is in question, employers could ask for an independent medical examination.

However, employers are also limited in what they can ask about an employee’s underlying medical condition.

As for religious grounds: “It can’t just be ‘It’s my religion to not get a vaccine,’” said Olsen. The worker must prove it is a sincerely held belief and or practice that he or she follows.

“Just being an antivaxxer is not enough,” said Troutman.

Employers must make reasonable accommodations for employees who fall under either exception so they can work safely.

“All of these requests for accommodation have to be individualized,” said Troutman. “It places a fairly significant burden on employers. It’s time-consuming and so fact-specific. That’s probably one reason why a lot of employers are opting, at least at this point, not to mandate but encourage.”

Such cases have ended up in court, including a firefighter in Texas who refused to get the TDAP vaccine on religious grounds.

The chief offered two workarounds: the firefighter could work as a code enforcement officer at the same pay or stay on as a firefighter but wear an N95 mask during his entire shift and keep a log of his temperature. The firefighter declined both offers, and he was fired.

A federal appellate court upheld his termination in January 2020, finding the chief’s accommodations reasonable.

Do employers have to provide workers paid time off to get vaccinated or recover from side effects?

Most likely. Under California law, covered employers with more than 25 employees must provide paid sick leave for vaccine appointments — whether mandated or not — and to recover from related symptoms. Senate Bill 95 went into effect March 29 and is retroactive to the first of the year.

Employers of any size that choose to mandate vaccines would also likely have to pay employees for the time spent getting the shots, according to labor attorneys.

If vaccines are voluntary, are employers allowed to inquire about a worker’s vaccine status?

Yes. “Employers can ask for evidence of vaccination — that’s perfectly legitimate,” Troutman said.

But employers should stick with a yes or no question, attorneys say. Anything else can veer into information protected by the ADA.

Employers must also not discriminate against workers who aren’t vaccinated by offering more opportunities or compensation to those who are, Troutman said. Employers could be screening out workers who have a legitimate reason not to be vaccinated.

Can businesses require proof of vaccination from customers in order to serve them?

Generally, yes. Businesses can’t discriminate on the basis of disability, and certain establishments — such as hotels, movie theaters, restaurants, sports arenas and concert halls — are prohibited from discriminating on the ground of race, color, religion or national origin.

But otherwise, businesses have the right to conduct transactions with whomever they choose — just as the “No shirt, no shoes, no service” signs suggest, according to attorneys. “No vaccine, no service” could be next.

Proof could be in the form of the Centers for Disease Control and Prevention vaccine card handed out by the clinic at the time of the shot, or be accessed digitally as part of a broader “vaccine passport” network.

Several versions are being developed by private tech companies, which suggests Americans could be soon navigating — and entering their private data into — a mish-mash of several different systems.

Businesses would have to try to provide reasonable accommodation for customers who can’t be vaccinated due to a disability or religious beliefs before they can refuse service, according to attorneys.

The idea of a virtual passport remains controversial — with opinions often split along party lines just as mask wearing and lockdowns were — and it raises questions of equity, logistics, privacy and the possibility of fostering a false sense of security.

The Republican governor of Texas this past week issued an executive order that says government agencies, plus private businesses and institutions that receive state funding, cannot require such proof of the public.

Florida’s governor, also a Republican, signed a similar order that is even more sweeping, saying such passports “reduce individual freedom” and “would create two classes of citizens.”

Other GOP lawmakers have publicly expressed similar reservations. The Democrat-led White House has said it won’t back a federal passport.

“The government is not now nor will we be supporting a system that requires Americans to carry a credential,” White House Press Secretary Jen Psaki said Tuesday. “There will be no federal vaccinations database and no federal mandate requiring everyone to obtain a single vaccination credential.”

New York is so far the only state that has launched a government-sponsored program, called the Excelsior Pass, which invites vaccinated users to sign up on a smartphone app to access their vaccine record or coronavirus test results. Some countries, such as Greece, are testing passport programs that would allow travelers who sign up to travel without quarantining.

In California, part of the reopening plan for larger audiences at live entertainment venues relies on a requirement to show proof of vaccination or a negative test result. It is unclear how the requirement will be implemented.

Can proof be required in private transactions, such as hiring a babysitter or swim instructor?

Yes.

“You have discretion, as long as you are not refusing to hire because of disability,” Olsen said.

Can vaccine companies be sued for adverse reactions or inadequate protection against the coronavirus?

No.

The vaccine makers are protected, until at least 2024, under the Public Readiness and Emergency Preparedness Act. The law allows the U.S. Health and Human Services Department to give legal immunity to providers of critical treatments and vaccines in emergency situations unless there is “willful misconduct.”

That means the makers can’t be sued for losses — including death — relating to the administration or use of covered countermeasures against COVID-19.

The protection is sweeping and also extends to health care providers who administer the shots, local and federal government and distributors.

There’s a dollar-andcents reason behind the protection, said Benjamin Ikuta, an Irvine-based medical malpractice lawyer and president-elect of the Medical Malpractice Trial Attorneys of California.

“It’s not just government wanting to help out the manufacturers in developing the vaccine quickly and efficiently. It saves the government money,” he said. “Increased costs of litigation would increase the amount the government has to pay for the vaccines.”

Lawsuits based on claims that the vaccine is ineffective are also unlikely to be successful, Ikuta said.

“You can’t sue if you actually do contract the disease,” he said. “Even without the PREP Act, there is the recognized risk that any vaccine might not be effective.”

His firm, Hodes Milman, hasn’t received any inquiries about COVID-19 vaccine lawsuits yet, he said.

The most common vaccine cases he takes are related to SIRVA — Shoulder Injury Related to Vaccine Administration — when shots are placed too high in the arm. But even SIRVA injuries, such as joint or nerve damage, would be covered under the PREP Act protection.

The only possible recourse for COVID-19 vaccine losses can be found under the Countermeasures Injury Compensation Program. Run by HHS, the program offers limited reimbursements for medical expenses, loss of employment income, and survivor benefits.

But it is notoriously difficult to win a claim. Since the program’s inception in 2010, it has received 701 claims, 39 of which were deemed eligible for compensation.

That program is separate from the National Vaccine Injury Compensation Program, which provides compensation for injuries caused by most other vaccines routinely administered in the United States that aren’t under the PREP Act.