Have You Had Your Shot?

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Have You Had Your Shot?

By Joseph J. PerkoskiManaging
Partner
Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd.

John “Jack” Klinker
Associate
Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd.

Legal Considerations in Mandating Employee Vaccination

The COVID-19 pandemic has plagued the world now for more than a year as school districts continue to address unprecedented challenges of educating students in a safe and effective manner while we wait for the crisis to abate. As Illinois school districts faced the 2020-21 school year under a state directive to create return to school plans with some level of in-person instruction, the challenge of how to provide instruction despite climbing COVID-19 positivity rates has been more than daunting. Districts throughout the state have been forced to weigh the challenge of remote instruction (and its negative impact on students) against the risks of in-person instruction and the task of undertaking massive mitigation efforts to make schools safe.

While some school districts have successfully adapted their operations to comply with the Illinois Department of Public Health (“IDPH”) and the Illinois State Board of Education’s guidance and requirements for safely providing in-person instruction, many have had to resort to maintaining remote and hybrid learning models. Regardless of the learning model, all districts would undoubtedly confirm that education in the wake of COVID-19 has been an unprecedented endeavor with a never-ending variety of challenges to navigate. However, the only apparent means of returning to a relatively normal educational environment—namely, the vaccine—comes with its own onslaught of questions.

Chief among the current questions is whether school districts can require their staff to be vaccinated as a condition of new or continued employment. In short, school districts have a legal basis to mandate that their employees be vaccinated, with some exceptions. However, it is important to note that certain legal and practical constraints may hamper mandated vaccination, at least in the short term. Read on for a full explanation of school districts’ authority to mandate employee vaccination, and the constraints affecting that authority.

Vaccine Background
The U.S. Food and Drug Administration (FDA) permitted vaccination by authorizing the Pfizer and Moderna vaccines in mid-December 2020. Based on their accelerated development and the extent to which they had been tested, the FDA initially permitted these vaccines by way of an Emergency Use Authorization (EUA). An EUA allows vaccines to be used before they receive full FDA approval due to an ongoing emergency — here, the COVID-19 pandemic. As the vaccines and their effects are studied further, the FDA is expected to determine whether to give them full approval or take some other action. Presumably, any future COVID-19 vaccine will receive similar treatment, at least until the pandemic subsides.

Authority to Mandate Vaccination
The Illinois Communicable Disease Prevention Act (410 ILCS 315/1 et. seq.) provides support for school districts wishing to mandate employee vaccination. The Act addresses the spread of communicable diseases that target young children and provides examples of those diseases (i.e., measles, poliomyelitis, invasive pneumococcal disease, and tetanus); however, this list is not exhaustive. Thus, a school district interested in implementing a mandatory vaccination program can point to the overarching rationale behind the Act — preventing the spread of communicable diseases posing serious threats to the health of the community. Per the Act, “the existence of susceptible children in the community constitutes a health hazard to the individual and to the public at large by serving as a focus for the spread of these communicable diseases.”1

The Act specifically refers to vaccination as one of, if not the principal, defenses against communicable diseases. It states, “all children shall be protected… by the appropriate vaccines and immunizing procedures to prevent communicable diseases which are, or which may in the future become preventable by immunization.” Notably, as of the time this article was written, the currently available COVID-19 vaccines have not been authorized for use by children.

Nevertheless, the principle underlying the Act can be used to mandate vaccination for district staff members. Specifically, requiring staff members to become vaccinated squarely aligns with the Act by aiding to prevent the spread of a communicable disease posing a serious threat to the health of the community, particularly school communities which largely consist of children who cannot be vaccinated currently.

Beyond the Act, mandatory employee vaccination is also supported by the Equal Employment Opportunity Commission (EEOC). The EEOC has published extensive guidance related to COVID-19 and its intersection with certain antidiscrimination laws (e.g., the Americans with Disabilities Act (ADA)). Among the recent updates to its COVID-19 guidance, the EEOC considered the implications of mandatory vaccinations. As noted by that guidance, the ADA permits employers to impose qualification standards requiring individuals not to pose a direct threat to the health or safety of others in the workplace. A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The EEOC has determined that an individual entering a workplace with COVID-19 poses a “direct threat” and, therefore, indicated that requiring vaccination constitutes a safety-based qualification standard. This standard would apply to current employees as well as newly hired individuals.

Therefore, school districts have a legal basis to mandate that their employees be vaccinated by virtue of the Communicable Disease Prevention Act and in accordance with the ADA. Nevertheless, a school district employing a vaccine mandate must be aware of legal and practical constraints associated with such a mandate.

Exceptions to Mandatory Vaccinations
While a school district likely can mandate vaccination of its employees, certain individuals may have underlying medical conditions preventing them from being vaccinated safely, which, in turn, can implicate the ADA. Specifically, the ADA prohibits employers from discriminating against employees because of their disability. An individual’s inability to receive a COVID-19 vaccination because of an underlying medical condition (e.g., history of a severe allergic reaction to vaccines) could constitute a disability for which the employer cannot take adverse action against the employee — namely, refusing to employ the individual based on a lack of vaccination.

If an employee claims he is unable to be vaccinated due to a medical condition, a school district can request that the employee obtain medical certification from their physician to substantiate the claim. If the employee provides medical certification, the school district will need to process whether the condition constitutes a disability as defined under the ADA. If so, they should process the impact of that condition on the employee vaccination mandate through an interactive dialogue.

As with any assertion of a disability and a request for a modification of work rule, the school district is required to conduct an individualized assessment of an assertion that a disability prohibits the employee from receiving a COVID-19 vaccination through an ADA interactive dialogue. As a part of this process, the school district will need to determine whether that employee’s lack of a vaccination poses a “direct threat” to the health and safety of the workplace. This assessment should consider “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.” Concluding that a direct threat exists includes determining whether an unvaccinated individual will expose others at the worksite to the virus. This assessment should also consider whether the employee can be provided with reasonable accommodations (e.g., a remote work assignment, leave of absence).

An employer may only exclude, or take other action against, an employee who cannot be vaccinated due to disability if the employee poses a direct threat to the worksite and the employer demonstrates that there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk.

In addition to possible medical reasons preventing an employee from receiving a vaccine, school districts may also face employee claims that their beliefs prevent them from receiving the vaccine. In this regard, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on an employee’s sincerely held religious beliefs, practices or observance. An individual may be unable to receive a COVID-19 vaccine due to sincerely held religious beliefs, practices or observance. When an employer has notice that an employee is unable to be vaccinated on religious grounds, it must provide a reasonable accommodation unless doing so would cause undue hardship. An employer with an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice may request that the employee provide additional information reasonably required to evaluate the request. However, upon confirmation of such religious grounds, the employee cannot be required to receive a vaccination, and the employer may only exclude, or take other action against, that employee if they pose a direct threat to the worksite and the employer demonstrates that there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk.

Constraints on Mandated Vaccination
Beyond the antidiscrimination concerns, there are other legal and practical constraints related to employee vaccine mandates, such as the current EUA status of the vaccines. As noted, because of the pandemic, the vaccines were rolled out as quickly as possible under the FDA’s EUA designation. The length of this status is unknown, and the status may undermine a school district’s vaccine mandate. Under the terms of an EUA, intended recipients of a vaccine must be informed of and allowed the option to refuse the vaccination. While the EUA status and the right to refuse was designed for normal vaccine trials, it is unsettled as to how this right to refuse impacts a mandatory employee vaccine program based on a public health emergency and authorized under the Communicable Disease Act. As such, while a district could impose an employee vaccine mandate, there may be a right to opt-out of receiving that vaccine. This EUA right to opt-out of vaccination could supersede an employer’s mandate.

Notably, the right to refuse a vaccine approved under an EUA does not carry over if it receives full FDA approval. The manufacturers of the vaccines currently approved under an EUA are continuing to collect data and study their safety and effectiveness. This information can be used to support the manufacturers’ applications for full FDA approval of their vaccines. Once a vaccine receives full FDA approval, employees will no longer be able to employ the EUA opt-out and, therefore, this constraint will be removed. Unfortunately, there is no definitive timeline for when any of the vaccines will receive full FDA approval and, in turn, improve the effectiveness of a district’s vaccination mandate. However, the larger sample size created by the rising number of vaccinated individuals throughout the country should aid those manufacturers in completing the necessary study and analysis to achieve full FDA approval for their vaccines.

In addition, school districts should be cognizant of the practical constraint imposed by limited vaccine supplies. A vaccination mandate could prove ineffective if there are not enough vaccines available for all district employees to receive one.

Fortunately, as time passes, the production and distribution of vaccines has been increasing and improving while school employees have also been included in the second wave of individuals eligible to receive the vaccine pursuant to the IDPH vaccination plan, Phase 1b. Therefore, practical constraints imposed by limited vaccine supplies should, hopefully, decrease over time.

Finally, while not necessarily a constraint, school districts will need to be cognizant of their obligation to bargain over implementing mandatory vaccination programs. Requiring employees to be vaccinated is a matter of inherent managerial policy which, under the Illinois Educational Labor Relations Act, need not be bargained. However, a school district must bargain the impact of such a policy on bargaining unit employees with their exclusive representative if they submit a demand to bargain. If a district unilaterally imposes a mandatory vaccination program without advance notice and bargaining upon request, it could result in an unfair labor practice charge.

School districts mandating vaccination of unionized employees should: 

  1. Provide advance notice of the mandate to the exclusive representative.
  2. Bargain the mandate to agreement or impasse if the representative requests bargaining.
  3. Notify all employees of the final vaccination plan before it is implemented.
Keeping the Mission (and Pitfalls) in Mind
Under Illinois law, in conjunction with guidance from the Federal authority responsible for enforcing discrimination laws, school districts likely can mandate that their employees receive a COVID-19 vaccination as a condition of their continued work. However, school districts must be aware of the pitfalls they may encounter because of a mandatory vaccination program. First, school districts must be cognizant of employees’ disabilities or sincerely held religious beliefs or practices which may prohibit them from being vaccinated. They must also be aware of other relevant constraints, including all individuals’ right to opt out of vaccination while the vaccine is subject to an EUA as well as the limited supply of vaccines. Fortunately, both of these constraints will, presumably, be removed as the vaccines are studied further and as production and distribution improve to meet the demand. Finally, school districts with unionized workforces must be cognizant of their obligation to bargain over a mandated vaccination program if the exclusive bargaining representative demands to bargain.

Nevertheless, to achieve the mission of safely and effectively educating students, vaccines are likely the necessary next step. By mandating that employees receive vaccinations, school districts are aligning themselves with the Communicable Disease Prevention Act, while advancing toward that goal.

1The Act has been used by districts to justify mandatory COVID-19 testing programs of school district employees.

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