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The presence of COVID-19 continues topersist throughout the United States, includingnew variant forms of the virus. Due to the strainthe virus is causing on hospitals, healthcareworkers, and first responders, employers areincreasingly opting to require that theiremployees get vaccinated. With suchmandates comes a myriad of open legalquestions, especially as it relates to public-sector employers, unionized workforces, andstates with collective bargaining.This article will address several ofthe most common questionsraised.National Fraternal Order of Policewww.FOP.net

QUESTIONCan a public employer mandate that employees get vaccinated? ANSWERYes Public employers can require their employees to getvaccinated against COVID-19. However, if a mandatoryvaccine policy is implemented, the employer may be requiredto accommodate an employee’s medical conditions underthe Americans with Disabilities Act (ADA) or religious beliefunder Title VII of the Civil Rights Act of 1964.Indiana University was one of the first public entities toimplement a policy requiring all students, faculty, and staff tobe fully vaccinated before returning to campus for the fallsemester of 2021. Indiana University students attempted toenjoin the university from imposing such policy, however, theNorthern District Court of Indiana denied the injunction statingthat the “Fourteenth Amendment permits Indiana University topursue a reasonable and due process of vaccination in thelegitimate interest of public health for its students, faculty, andstaff.” The Seventh Circuit and United States Supreme Courtupheld the trial court’s decision denying the injunction andthus, allowing the mandate.Since then, COVID-19 vaccine mandates have beenimplemented on the federal, state, and municipal levels. OnSeptember 9, 2021, President Biden announced the “Path OutNational Fraternal Order of Policewww.FOP.net

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 timeswhile on-duty. .National Fraternal Order of Policewww.FOP.net

QUESTIONIf 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?ANSWERYes, 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 Policewww.FOP.net

For example, the California Statewide Law Enforcement Association is giving employees the option of providing proof of vaccination or adhering to testing and mask requirements. In terms of testing costs, employers have taken a range of approaches from the employer fully covering the costs, to placing such cost on the unvaccinated workers. In some instances, employers are having employees contribute to the costs of on-site testing, such as a co-pay. While employees also have the option to be tested at an outside provider which typically bills patients and their insurance. National Fraternal Order of Policewww.FOP.net

QUESTIONIf the employer mandates that an employee gets vaccinated and the employee gets sick (or has an adverse reaction), will the employee have a cause of action against the employer, the physician, and/or medical entity that administers the vaccine? ANSWERAn employee’s recourse for an adverse reaction due to a mandated COVID-19 vaccine would most likely be covered by workers compensation. Under most state laws, an adverse reaction to an employer mandated COVID-19 vaccine would likely be treated as an on-the-job injury and therefore covered by workers’ compensation. Workers' compensation has been the employee's only recourse for other employer-required vaccinations, so it is likely that a COVID-19 vaccine would be treated the same.National Fraternal Order of Policewww.FOP.net

An employee would not have a cause of action against the manufacturer or medical entity providing the vaccine pursuant to the Public Readiness and Emergency Preparedness Act (PREP Act). The PREP Act authorizes the Secretary of Health and Human Services to limit legal liability for “losses relating to the administration of medical countermeasure such as diagnostics, treatments, and vaccines.” In a declaration effective February 4, 2020, the Secretary of Health and Human Services invoked the PREP Act thereby providing legal protection to companies making or distributing the vaccine. The only exception to PREP Act immunity is for death or serious physical injury caused by “willful misconduct.” This protection lasts until 2024. National Fraternal Order of Policewww.FOP.net

QUESTIONWhat are the privacy rights of the employees relative to vaccination when an employer requires that they furnish proof of vaccination? ANSWERDocumentation or other confirmation of vaccination provided by the employee is medical information and must be kept confidential. An employer can ask the vaccination status of its employees in an effort to maintain a safe work environment. Indeed, employers have a legitimate business reason to keep track of employees who have been vaccinated. Contrary to public perception, it is not a Health Insurance Portability and Accountability Act (HIPAA) violation for an employer to ask if an employee is vaccinated against COVID-19. HIPAA applies only to specific health-related entities, such as insurance providers, doctors, and hospitals. National Fraternal Order of Policewww.FOP.net

However, if an employer is going to make a copy of an employee’s vaccination card , the employer must maintain such information as it maintains other medical information. Guidance from the EEOC warns employers against requesting medical information during the process of verifying the vaccination to avoid triggering violations under the ADA or the Genetic Information Nondiscrimination Act (GINA). Under the ADA, an employer may not make a disability-related inquiry (i.e., ask questions that are likely to elicit information about an employee’s disability) unless the questions are job-related and consistent with business necessity.Therefore, there are limits on what an employer can ask or how they may react once aware of an employee’s vaccination status. Asking questions about why an employee is not vaccinated could reveal medical or religious information which are protected by federal laws. However, if an employer has a policy requiring that all employees get vaccinated, then any employee seeking an exemption or accommodation under such policy will be obligated to disclose either a medical disability or religious exemption for their case. National Fraternal Order of Policewww.FOP.net

QUESTIONWhat are the privacy rights of the employees relative to COVID-19 tests when an employer requires that they furnish proof of the COVID-19 test?ANSWERThe results of an employee’s COVID-19 test is medical information and must be kept confidential.The EEOC’s guidance allows for employers to test employees for COVID-19 as well as ask employees if they are experiencing symptoms of the virus, such as fever, chills, cough, shortness of breath, or sore throat. The EEOC indicated that “employers are to maintain all such information about an employee’s illness or absence thereof as a confidential medical record in compliance with the ADA.”The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. The results of a COVID-19 test or information that an employee has symptoms of COVID-19 is medical information and therefore, must be kept confidential.National Fraternal Order of Policewww.FOP.net

QUESTIONIs workers’ compensation implicated if a public employee contracts COVID-19 and it is believed that itis not job-related? Will that individual be eligible for workers’ compensation or paid sick leave? ANSWERAn employee may only be eligible for workers’ compensation if the employee contracts COVID-19 on the job or it is job-related. Though every state has its own workers’ compensation system, generally workers’ compensation does not cover communicable diseases like COVID-19 because of the varying ways individuals can be exposed to COVID-19. National Fraternal Order of Policewww.FOP.net

Thus, it is difficult to directly tie contracting COVID-19 to the workplace. For an employee to be eligible for worker’s compensation will depend on the nature of the job, the circumstances of the case, and the rules in that state. For example, according to the Ohio Bureau Workers Compensation, an Ohio COVID-19 workers’ compensation claim “depends on how you contract COVID-19 and the nature of your occupation.” Jobs with a higher risk of exposure, like first responders, are more likely to have an eligible COVID-19 workers’ compensation claim. Clearly, first responders face a particular danger of being exposed to COVID-19 because of the nature of their job. As such, several states took actions to extend workers’ compensation coverage to include first responders and health care workers impacted by COVID-19. Some states amended their policy so that COVID-19 infections in certain workers are presumed to be work-related and covered under workers’ compensation. This presumption places the burden on the employer and insurer to prove that the infection was not work-related, thus making it easier for those workers to file successful claims. For example, Minnesota enacted legislation that creates a presumption that an employee contracted COVID-19 out of and in the course of employment for first responders and healthcare providers – including peace officers.National Fraternal Order of Policewww.FOP.net

QUESTIONIn a unionized workforce, must the employer bargain before mandating employees get COVID-19 vaccines? Answer: An employer’s decision to mandate COVID-19 vaccines will likely be subject to mandatory bargaining.In a unionized environment, employers are presented with otherlegal obligations – primarily in the bargaining context – whenconsidering whether to implement a mandatory vaccinemandate. The employer’s legal obligations dependupon the collective bargaining agreement. Theagreement might have provisions reserving tomanagement the right to promulgate health andsafety rules or how disputes under the agreementmust be resolved.For example, in FOP Chicago Lodge No. 7, et al.,v. City of Chicago, et al., the City of Chicago and thepolice union have a collective bargainingagreement that provides that disputes arising underthe agreement must be resolved by arbitration. The unionopposed the City’s implementation of a vaccinationpolicy whereby all city employees must report theirvaccination status or get tested twice weekly. The court heldthat a vaccine requirement cannot be remedied in arbitrationbecause “an award of back pay or reinstatement cannot undo avaccine. Nothing can.” Thus, in an effort to “preserve the unions’right to meaningful arbitration,” the court stayed the vaccinationrequirement until arbitration is complete. However, the reportingNational Fraternal Order of Policewww.FOP.net

and testing requirements of the policy were deemed mattersthat can be remedied in arbitration and therefore theseportions of the policy remain in full effect.Importantly, an employer’s decision to require employeesbe vaccinated as a condition of their employment will likelyrequire bargaining with the union. “[L]abor law presumes that amatter which affects the terms and conditions of employmentwill be a subject of mandatory bargaining.” Newspaper Guildv. NLRB, 636 F.2d 550, 561 (D.C. Cir. 1980). Typically, a newworkplace rule affects a term or condition of employment is ifan employee’s breach of the rule can lead to discipline or theloss of an opportunity. However, what that bargaining looks like,in terms of the COVID-19 pandemic and mandated vaccinationpolicies, continues to be litigated.For example, The International Brotherhood of Teamsters,Local 743 filed a federal lawsuit in Chicago against a unionhealth fund – the TeamCare fund – challenging the fund’smandate that its workers get vaccinated or face termination. Inthe Complaint, Teamsters allege the fund’s vaccination policyrequired bargaining and that the fund failed to adequatelynegotiate over the requirement with the union. The courtdenied the TRO, sending the parties to grievance arbitrationinstead. The court further declined to expedite the arbitrationproceedings.Lastly, in jurisdictions with collective bargaining, offeringvaccine incentives – such as cash or enhanced benefits –would also likely be a subject of collective bargaining as a“wage” issue. This means that the employer would likely have tonegotiate before implementing the incentives.National Fraternal Order of Policewww.FOP.net

CONCLUSIONThus far, the vast majority of courts are not providing employees with any immediate relief from these mandated policies. Indeed, courts are ruling heavily in favor of vaccination mandates. Though courts are not insensitive to the potential determent of people losing jobs and income, even temporarily, the courts analysis’ have been guided by state and federal laws.By: Larry H. JamesGeneral Counsel, National Fraternal Order of Policeljames@cbjlawyers.comChristopher R. GreenAssociate General Counsel, National Fraternal Order of Policecgreen@cbjlawyers.comCrabbe, Brown & James, LLP500 South Front Street, Suite 1200Columbus, OH 43215Tel: 614-229-4567 / Cell: 614-581-1125National Fraternal Order of Policewww.FOP.net