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The Rise of the Anti-Vax Employee

anti vax

Three part series on vaccines and your rights, from a legal perspective.

Part 1: Vaccine Mandates at Work, is it Legal?

Part 2: The History of Vaccine Requirements 

Part 3: The Rise of the Anti Vax Employee 

The Covid-19 pandemic has elevated the dispute over mandatory vaccinations to a new level.   Employees in many parts of the country are simply refusing to take the vaccine.  Many raise concerns over safety, others see the issue as an infringement on personal freedoms.  Can the government really force us to receive vaccines? Can an employer require that its employees receive vaccinations?  In most cases, the answer to both questions is yes.  In fact, most people in the United States received vaccines as children not because they asked for them, but because the law required it.  Vaccine mandates have been around for over one hundred years in California, and challenges to those statutes are not new.  

California’s Health and Safety Code Section 12035 requires, as a condition of enrollment in a private or public elementary or secondary school, child care center, or nursery, that students be immunized for measles, mumps, rubella, tetanus, whooping cough, chicken pox, and three other diseases.  Prior to 2016, exemptions to the law allowed individuals to avoid vaccinations for religious and medical purposes, as well as “personal beliefs.”  Concerned by a measles outbreak and the perceived abuse of the existing laws’ exemptions, Governor Jerry Brown signed into law SB277, restricting those exemptions.  Notably, additional requirements were placed on those seeking exemptions for medical reasons, and the “personal belief” exemption was removed.  

Challenges to the amendment were swift but unsuccessful.  In Brown v. Smith, 24 Cal.App.5th 1135 (2018) California’s Court of Appeal, Second District found little fault with the removal of the “personal beliefs” exemption, stating, “A belief that is “philosophical and personal rather than religious . . . does not rise to the demands of the Religion Clauses…”  (Brown, at 1144 (citations omitted)).  Further, “Neither rights of religion nor rights of parenthood are beyond limitation. . . .  The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”  Id.; (citations omitted).

Where does this leave employees?  Pretty much in the same boat as students with respect to potential constitutional challenges.  Both the EEOC and California’s Fair Employment and Housing Act have offered guidance on the topic.  Under the Fair Employment and Housing Act, an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity.  Further, even after receiving the vaccine, employers may still mandate that the employee take regular COVID-19 tests.   And an employer can ask employees for proof of vaccination.  Notably, these guidelines do not include accommodations for “personal beliefs.”  

Some employees may argue that vaccination requirements are tantamount to forced, involuntary medical experiments — a practice banned upon the adoption of the Nuremberg Code in 1947.  This argument has largely been dismissed by the Courts.  As explained in Brown, while medical experiments are not “reasonably related to maintaining or improving the health of the subject… The applicable authorities — legal and scientific — clearly show that immunization is reasonably related to maintaining the health of the subject of the immunization as well as the public health.”  Brown, at 1148.  

Religious exemptions aside, the most likely court battle will involve disability discrimination cases brought by employees who were fired even after presenting the proper medical documentation excusing them from receiving the vaccine.  Getting into the courthouse is only half the battle.  it will likely be hard to convince a jury that these medical exemptions are legitimate.  As of July 2021, well over ninety percent of Covid infections occur with unvaccinated individuals.  Most of the jurors will have, themselves, been vaccinated and may be suspicious of a “freeloader” who enjoys the benefit of herd immunity without paying the price.  

Regardless, the battle over vaccines is expected to play out in the courts in the foreseeable future. 


About the Author James Urbanic

James Urbanic

I have tried, to verdict, over forty cases in Los Angeles County. I have tried cases in both state and federal court. Of those cases, over ten have resulted in FEHA (Fair Employment Housing Act) related verdicts in favor of my clients in excess of $1,000,000.

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