COVID VACCINE Q&A loading...
National Fraternal Order of Police
T
he presence of COVID-19 continues to
persist throughout the United States, including
new variant forms of the virus. Due to the strain
the virus is causing on hospitals, healthcare
workers, and first responders, employers are
increasingly opting to require that their
employees get vaccinated. With such
mandates comes a myriad of open legal
questions, especially as it relates to public-
sector employers, unionized workforces, and
states with collective bargaining.
This article will address several of
the most common questions
raised.
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QUESTION
Can a public employer mandate that
employees get vaccinated?
ANSWER
Yes
Public employers can require their employees to get
vaccinated against COVID-19. However, if a mandatory
vaccine policy is implemented, the employer may be required
to accommodate an employee’s medical conditions under
the Americans with Disabilities Act (ADA) or religious belief
under Title VII of the Civil Rights Act of 1964.
Indiana University was one of the first public entities to
implement a policy requiring all students, faculty, and staff to
be fully vaccinated before returning to campus for the fall
semester of 2021. Indiana University students attempted to
enjoin the university from imposing such policy, however, the
Northern District Court of Indiana denied the injunction stating
that the “Fourteenth Amendment permits Indiana University to
pursue a reasonable and due process of vaccination in the
legitimate interest of public health for its students, faculty, and
staff.” The Seventh Circuit and United States Supreme Court
upheld the trial court’s decision denying the injunction and
thus, allowing the mandate.
Since then, COVID-19 vaccine mandates have been
implemented on the federal, state, and municipal levels. On
September 9, 2021, President Biden announced the “Path Out
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of the Pandemic” which includes vaccine mandates for
federal employees, federal contractors, and large private
employers. Notedly, numerous states and entities are pursuing
various legal challenges to the federal vaccine mandates. As
such, the mandate for federal employees has been stayed
and the Sixth Circuit Court of Appeals will hear the
consolidated challenges to the policy. Furthermore, states
have implemented various vaccine mandates for state
workers. For example, in California, the governor has
announced a public health order whereby all state workers,
plus workers in healthcare and high-risk settings, must “either
show proof of full vaccination or be tested at least once per
week.” Lastly, cities and counties have also mandated
vaccines for their employees. For example, the City of
Chicago announced that all city employees must
vaccinated unless exempted for medical or religious reasons.
Some negotiations have led to the choice between the
vaccine and alternatives, such as testing or wearing a mask.
For example, a Memorandum of Understanding was entered
into between the City of Milwaukee and the Milwaukee
Police Supervisors’ Organization (WI Lodge #16) after a
vaccine mandate was implemented for general city
employees. The MOU requires all
union members to provide proof
of vaccination, except those with
an approved medical religious
accommodation. However,
members who remain unvaccinated
or have an approved accommodation
must wear a face covering at all times
while on-duty.
.
National Fraternal Order of Police
www.FOP.net
QUESTION
If the employee refuses to get
vaccinated, can the public employer
mandate that the employee be tested for
COVID-19? How often? And who must
incur the costs of such tests?
ANSWER
Yes, the employer can mandate that the
employee be tested for COVID-19. It is
the employer’s decision to determine
frequency and who incurs the cost of the
tests.
Unvaccinated employees can be subjected to COVID-19
testing. Although the ADA generally prohibits medical
examinations of employees, such examinations are permissible
to determine whether an employee poses a direct threat to the
workplace. In guidance issued on April 23, 2020, the U.S. Equal
Employment Opportunity Commission (EEOC) stated that the
COVID-19 pandemic poses a direct threat to the workplace
opening the door for COVID-19 testing of employees to reduce
the risk of infection.
National Fraternal Order of Police
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