Key Takeaways

• With FDA approval of the Pfizer/BioNTech COVID-19 vaccine, and as the Delta variant of the coronavirus continues to spread, mandatory COVID-19 vaccination requirements are being implemented by public and private employers across the nation

• Federal, state, and local laws and regulations do not prohibit mandatory vaccination policies from being implemented by public and private employers

• Public and private employers must still be mindful of federal, state, and local health and employment laws when developing and implementing any mandatory COVID-19 policies and protocols

On Friday, August 27, 2021, the New York State Bar Association (NYSBA) issued a report produced by its Emergency Task Force on Mandatory Vaccination and Safeguarding the Public’s Health. The Task Force was commissioned to examine legal and policy issues associated with vaccination mandates and to make policy recommendations that prioritize safeguarding the public’s health as the highly transmissible COVID-19 Delta variant continues to spread. The Task Force is comprised of legal experts in health care, employment law, and public policy to make recommendations regarding vaccination policy within New York State.

LEGAL AND POLICY FINDINGS

The report highlights the tension between the promotion of individual rights and protection of common good, but notes that the U.S. Constitution permits federal, state, and local governments leeway to tip the scale to protect public health, but only so far as necessary. As the COVID-19 pandemic has swept through the United States, states have utilized their police powers to implement protective measures, such as quarantining; mandatory masks mandates; limiting the number of people who may congregate; and mandatory vaccinations for participation in school, the workplace, and other social activities. Such protective measures have been upheld by courts because any burdens on liberty were outweighed by the states’ legitimate interest in protecting the welfare of their citizens and the community.

The report affirms that private employers are allowed to make vaccination requirements a condition of employment. The Equal Employment Opportunity Commission (EEOC) and the U. S. Department of Justice have also issued such a requirement, subject to a covered employer’s compliance with the reasonable accommodation provisions of Title VII (Title VII) of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). Additionally, and for New York employers, such a requirement should not run afoul of the New York State Human Rights Law so long as the employer engages in an interactive process to explore whether, and to what extent, it may reasonably accommodate an employee who is unable to receive the vaccine because of a disability or a sincerely-held religious belief. Generally, documentation from a health care provider stating that an employee is unable to receive the vaccine because of a medical condition will qualify as a disability under New York law. With respect to religious accommodation requests, employers should assume that an employee’s request for a religious accommodation is based on a held religious belief.

Moreover, unionized private employers should be aware that implementing vaccination requirements would be considered a mandatory subject of bargaining. Such employers should review its collective bargaining agreement for any broad management rights clause or other specific grant of authority. Similarly, public employers have the duty to negotiate with certified or recognized employee organizations (labor unions) regarding mandatory subjects of bargaining. Although there is an open legal question as to whether mandatory vaccination/testing is a mandatory subject of bargaining, public employers should be cautious and negotiate with the labor union.

For health care organizations, mandatory vaccination policies for health care workers have been consistently upheld by the courts. Recently, on August 16, 2021, the New York State Department of Health announced that all hospital and long-term-care workers must be vaccinated by September 27, 2021. On August 26, 2021, the New York State Public Health and Health Planning Council expanded on the announcement by eliminating religious exemptions, but continues to allow certain medical exemptions.

Likewise, courts have consistently recognized that states may mandate vaccinations for primary and secondary school students. In New York, private and public school students must be vaccinated against diphtheria, tetanus, pertussis, measles, mumps, rubella, poliomyelitis, hepatitis B, and varicella. Additionally, although New York State continues to provide medical exemptions for public school students, there are no religious exemptions. As for students enrolled in colleges, universities, and other post-secondary institutions, New York law provides medical and religious exceptions to immunization mandates.

CURRENT STRATEGIES

In an effort to increase the COVID-19 vaccination rate in New York, several strategies have been implemented. New York has sought to educate the public about the effectiveness of the vaccination against COVID-19 and variants, which has been very effective for many New Yorkers. Others have been persuaded through minor incentives, such as lottery tickets, baseball tickets, and movie passes.

New York State government has also sought to slow the spread of COVID-19 by limiting the activities of unvaccinated individuals. For example, the SUNY system has announced that fall attendance will require proof of vaccination. Additionally, many private universities have announced similar policies. Elsewhere, public accommodations, such as retail stores, restaurants, theaters, stadiums, and others are encouraged to require proof of vaccination and are explicitly authorized to do so if necessary.

RECOMMENDATIONS

To limit the spread of or eradicate COVID-19, the NYSBA Task Force advocates for the vaccination of as many people as possible. To that end, the NYSBA makes several recommendations.

First, all attorneys should be required to be vaccinated. Second, all employers should require their employees to be vaccinated. Additionally, if capable, all employers should provide on-site vaccinations, and provide paid time-off for any employee who may suffer from temporary side-effects in the days post-vaccine. Third, any health care employers not covered by the emergency regulations should require its employees to be fully vaccinated. Fourth, businesses should be encouraged to require patrons to (1) either provide proof of vaccination or the results of a test within the past 24 hours showing that the individual is COVID-19 free and (2) wear masks. Fifth, higher education institutions should require that their students and workforces be fully vaccinated. Sixth, the state Legislature should require COVID-19 vaccination for elementary school-age children when a vaccine becomes available and is approved by regulators and public health authorities.

The NYSBA’s report comes on the heels of the U.S. Food and Drug Administration’s approval of the Pfizer/BioNTech COVID-19 vaccine for individuals who are 16 years old and older, which paved the way for public and private employers throughout the country to begin implement and enforce vaccination mandates for employees. We provide a link to the NYSBA Task Force’s findings and recommendations here.

Goldberg Segalla attorneys are presently advising and assisting employers of all types and sizes throughout the country regarding the drafting and implementation of mandatory vaccination policies and protocols to ensure compliance with state and federal health and anti-discrimination laws, including the ADA, Title VII, and the Genetic Information Non-Discrimination Act of 2008, and others, as well as state and local laws, regulations, and/or ordinances.

If you have any questions regarding this topic or how it can impact your business, please contact:

• Richard A. Braden
• Charles Lazo
• Caroline J. Berdzik
• Kristin Klein Wheaton
• Or another member of our Employment and Labor team