COVID-19 Legal FAQ Update – Vaccines

Memorandum

From:  CEA Legal Center

Date: January 8, 2021

RE: COVID-19 Legal FAQ Update – Vaccines


Disclaimer: This publication is for informational purposes only and is not intended as a substitute for specific legal or other professional advice. If you have specific questions about your legal or contractual rights, contact your Colorado Education Association union representative or local leader. This guidance will be updated periodically based on new information and guidance, so please refer back to this link for the most current information.

Question: Can a school district lawfully require its employees, including teachers and non-licensed personnel, to receive a COVID-19 vaccine as a condition of employment?

Answer: Yes, provided that any employees who are entitled to exemptions for medical or religious reasons are accommodated if possible.

The U.S. Supreme Court held in 1905 that the U.S. Constitution does not prohibit vaccination mandates for smallpox adopted to protect public health and safety. The Americans with Disabilities Act (ADA) allows employers to impose medical requirements like vaccinations if the requirements are justified by a “direct threat” and are no broader or more intrusive than necessary. It is clear that COVID-19 vaccination requirements meet this legal standard — except, possibly, in the case of employees who have absolutely no contact with others in doing their jobs.

Question: Which employees are entitled to medical and religious exemptions and accommodations?

Answer: 1) If an employee has an ADA-qualified disability which prevents him/her from receiving a COVID-19 vaccine, the ADA requires the employer to make reasonable accommodations for the employee’s disability (unless doing so would cause the employer an undue hardship).

These accommodations could include providing/requiring protective gear, providing a modified work schedule and allowing telework. If there are no possible accommodations that would effectively eliminate the threat posed by an unvaccinated employee, the employer does not have to allow the unvaccinated employee to work.

In addition, only a limited number of people will be able to show a medical condition preventing them from receiving the vaccine. The Pfizer-BioNTech vaccine has been approved for use by all individuals over 16 years of age and the only contraindication is for people with severe allergies to any of the vaccine’s ingredients. At this time, it is not entirely clear whether pregnant and breastfeeding employees can be required to obtain vaccinations because the Centers for Disease Control (CDC) has not yet issued its final recommendations on the use of the vaccine by pregnant/breastfeeding individuals.

2) If an employee has “sincerely held religious beliefs” in opposition to vaccination, Title VII of the 1964 Civil Rights Act requires his/her employer to reasonably accommodate those beliefs, unless doing so would cause undue hardship to the employer. The employee’s opposition must have a religious basis, as opposed to opposition based on concerns about vaccine safety or government overreach. However, the employee’s beliefs do not have to be part of any specific religion. A belief can be religious under Title VII even if it is shared by no one else.

Title VII requires employers to make the same types of accommodations for employees with religious objections as the ADA requires for employees with disabilities (discussed above). However, Title VII, unlike the ADA, contains a very broad exception for “undue hardship.” Under Title VII, any accommodation that imposes “more than de minimis” costs or burdens on the employer constitutes an “undue hardship.”

Question: Should local associations try to bargain with their school districts regarding implementation of vaccination requirements?

Answer: Yes, as always, we recommend that you request bargaining on this issue with your districts. It is not clear that districts are required to bargain this issue, but
it cannot hurt to try. Although health and safety issues are mandatory subjects of bargaining under the National Labor Relations Act (NLRA), management rights clauses in collective bargaining agreements may, depending on their language, be found to preclude mandatory bargaining on this issue.

If you have any questions, please feel free to reach out to CEA Legal.