Legal Rights and Vaccine Mandates: Myths and Realities

These are uncertain and divisive times. But I believe in getting the facts straight. From what I am hearing, many disability community members favor vaccines, while some have concerns about getting vaccinated.

Everyone deserves to make choices informed by an accurate understanding of the law.  This article covers only vaccine mandates at work, but there are similar considerations for schools, public places, etc. This is a quickly evolving area, but here is the legal situation right now.

Basic Legal Principles

1. Properly crafted vaccine mandates are likely legal.
   • Before COVID, courts often rejected challenges to vaccine mandates.[1] So far, rulings are similar with COVID vaccine mandates.[2]
   • The federal Equal Employment Opportunity Commission (EEOC) has also said that vaccine mandates are legal, if they have appropriate exceptions.
   • But, vaccine mandates have to provide for accommodations[3] and may have to respect required procedures, such as union bargaining.
2. Vaccine mandates cannot be applied in a way that discriminates on the basis of race, or any other protected characteristic. (E.g. asking only Black employees for proof of vaccine, or scrutinizing the sincerity of religious objections only for employees of color.)
3. Employers can ask about vaccination status.
   • HIPAA does not stop employers from asking for or disclosing vaccination information.
   • Vaccination status is also not protected medical information under the ADA, per the EEOC.
   • Some state laws are more protective, but in general there is a lot of confusion about medical privacy—people often call me thinking they have privacy rights that do not exist in the law.
4. Employers must consider exceptions—individually—for:
   1. Disability if it is a medical problem to get vaccinated, under the ADA and other disability discrimination laws. 
      • This exception virtually always requires a clear, specific doctor’s note, explaining the medical condition, what it impairs (see below), and why it prevents vaccination.
      • The federal ADA requires that the medical condition be serious enough to substantially limit a major life activity or bodily function.
      • Local laws, like the New York City Human Rights Law, define disability more broadly.
   2. Religious objections, under Title VII and other religious discrimination laws.[4]
      • The objection must be based on a sincerely held belief.
      • It does not need to be based on an organized religion or religious official’s directive.
      • It must be religious, not moral or ethical, in nature.
      • Religious exceptions are narrower than disability exceptions.
      • Employers are pushing back on religious objections more in the COVID context than I have seen previously; as explained below, the EEOC says this may be illegal.

Note: Employers have some responsibilities to identify the need for a disability-related accommodation, but they probably do not have to make announcements about these exemptions;[5] employees should ask.

How It Works

Reasonable accommodation for disability or religion must be an individualized determination, not a blanket rule about religious denomination or medical diagnosis. This means:

• Rigid deadlines or paperwork requirements may not be legal.[6] Employees should ask for extensions, e.g. to get medical documentation.
• Disability concerns must be considered interactively: Employers and disabled employees must engage in an interactive process to see if medical issues can be accommodated.
• Proof of religious faith is not usually required: The EEOC has said that employers should only make a “limited factual inquiry” if there is “an objective basis for questioning” either that the belief is religious or sincere.
• An employer can reject a disability or religious exception that is too burdensome. This depends on the job. For example, some employees can work safely and productively in a remote location; others can’t.

At Will Employment

Especially for private, non-government and non-union work, employers probably do not have to justify a vaccine mandate. Most employees are “at will,” which means employers do not have to prove rules are fair, rational, or consistent with due process.

There are some exceptions to this rule, for example:

• Union employees may have collective bargaining rights.
• Some states have other laws that may apply.
• Public employees have additional rights.

The bottom line is that every situation is different, so legal rights will vary. We can all agree that an employer’s vaccine mandates, like everything else, have to respect our civil rights law—including the ADA.

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[1] See, e.g. Horvath v. City of Leander, 946 F.3d 787, 792 (5th Cir. 2020), as revised (Jan. 13, 2020) (upholding vaccine requirements for firefighter who was offered accommodation of wearing respirator or transfer to lower-paid position); Hustvet v. Allina Health Sys., 910 F.3d 399, 409 (8th Cir. 2018) (upholding requirement of rubella immunity for healthcare workers with client contact, rejecting claim of disability based on “garden variety” allergy); LaBarbera v. NYU Winthrop Hosp., No. 218CV6737DRHSIL, 2021 WL 980873, at *10 (E.D.N.Y. Mar. 16, 2021), appeal dismissed (July 7, 2021) (mandatory flu vaccine did not discriminate against pregnant health care workers); Robinson v. Children’s Hosp. Bos., No. CV 14-10263-DJC, 2016 WL 1337255, at *5 (D. Mass. Apr. 5, 2016) (collecting and discussing cases).

[2] See, e.g. Beckerich v. St. Elizabeth Med. Ctr., No. CIV 21-105-DLB-EBA, 2021 WL 4398027 (E.D. Ky. Sept. 24, 2021) (holding that health care workers are unlikely to succeed in claims vaccine mandate is illegal); Bridges v. Houston Methodist Hosp., No. CV H-21-1774, 2021 WL 2399994, at *1 (S.D. Tex. June 12, 2021) (rejecting argument that vaccine mandates are contrary to public policy and wrongful termination laws); see also Klaassen v. Trustees of Indiana Univ., 7 F.4th 592, 593 (7th Cir. 2021) (holding public university’s vaccine mandate for students does not violate constitutional right to due process); Norris v. Stanley, No. 1:21-CV-756, 2021 WL 3891615, at *1 (W.D. Mich. Aug. 31, 2021) (denying preliminary injunction, rejecting constitutional arguments based on due process and right to refuse medical treatment).

[3] Cf. A. v. Hochul, No. 1:21-CV-1009, 2021 WL 4189533, at *1 (N.D.N.Y. Sept. 14, 2021) (granting preliminary injunction against New York law that mandates COVID vaccines for health care workers to the extent is does not allow religious exemptions).

[4] For a pre-COVID case discussing whether anti-vaccination beliefs are religious, collecting cases, and concluding that such beliefs may or may not be protected, see Fallon v. Mercy Cath. Med. Ctr. of Se. Pennsylvania, 877 F.3d 487, 492 (3d Cir. 2017) (holding plaintiff there did not have a protected religious belief); see also Brown v. Children’s Hosp. of Philadelphia, 794 F. App’x 226, 227 (3d Cir. 2020).

[5] See, e.g., Edwards v. Elmhurst Hosp. Ctr., No. 11 CV 4693 RRM LB, 2013 WL 839535, at *4 (E.D.N.Y. Feb. 15, 2013), report and recommendation adopted, No. 11-CV-4693 RRM LB, 2013 WL 828667 (E.D.N.Y. Mar. 6, 2013) (announcement that failure to comply with flu vaccine policy could result in discipline did not violate the rights of Jehovah’s Witness who was not disciplined).

[6] See, e.g. Equal Emp. Opportunity Comm’n v. Mission Hosp., Inc., No. 116CV00118MOCDLH, 2017 WL 3392783, at *3 (W.D.N.C. Aug. 7, 2017) (reasonable jury could find that denial of religious exemption to flu vaccine mandate based on failure to comply with rigid technical procedures violated Title VII).