The recent push for vaccinating the public against Covid-19 has polarized the public. In many states — including California — the battle over vaccinations has moved into the workplace. On one hand, Employers are concerned about lawsuits and they want their employees vaccinated. On the other hand, some employees, already fed up with lockdowns and masks, view vaccine requirements as governmental overreach.
Can a company mandate all employees to get the vaccine?
Anti-vax employees often ignore the fact (or aren’t told by cable news pundits) that constitutional rights aren’t absolute but are balanced against the public good. In fact, vaccine requirements have been around for well over 150 years and have consistently withstood constitutional challenges throughout that time. 100 years ago the U.S. Supreme Court made it clear: “It is within the police power of a State to provide for compulsory vaccination.” Zuch v. King (1922) 260 U.S. 174, 176.
Many employees are turning to creative arguments to avoid becoming vaccinated. Those include pursuing medical and/or religious loopholes in California’s vaccination laws. Those loopholes — or exemptions — are tightening up, however.
California’s Health and Safety Code Section 12035 requires, as a condition of enrollment in a private or public elementary or secondary school, childcare 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).
Under the Fair Employment and Housing Act, an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection….
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.”
Navigating existing exemptions and getting in front of a jury is only half the battle. As of July 2021, well over 90 percent of Covid infections occur with unvaccinated individuals. Most of the jurors will have, themselves, been vaccinated and may be suspicious of a “free loader” who enjoys the benefit of herd immunity without paying the price. Perhaps the best argument in a vaccine litigants favor is: they came for me today. Will they come for you tomorrow?
About the Author 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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