Are Employer-Mandated Vaccines the Future? New York State Bar Association Says Yes

Author: Michael D. Drews

Guest Editor: Grace Shuman

Related Articles: COVID-19, Employment, New York, Pandemic

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September 13, 2021 2:33pm

On August 27th, the New York State Bar Association’s Emergency Task Force on Mandatory Vaccination and Safeguarding the Public’s Health (“Task Force”) released a report detailing its discussions on the COVID-19 vaccine.i Among its many recommendations, the Task Force urged lawyers, employers, and their employees to get vaccinated, as well as teachers, students (when approved for their age group), and university students, faculty, and staff.ii In addition, the Task Force recommended vaccine access be provided in correctional facilities and in immigration detention facilities.iii

Based on the Task Force’s reasoning, these mandates and suggestions may be put into place soon. Vaccines are coming to the workforce, and people should be ready for them.

 

Constitutional Reasoning

In its findings, the Task Force evaluated the structural context of the pandemic as well as the constitutional context. The Task Force stated, “[t]he COVID-19 pandemic demonstrates the tension between promotion of individual rights and protection of common good. The U.S. Constitution enables us to tip the scale to protect public health, but only so far as necessary.”iv Citing Jacobson v. Massachusetts and Phillips v. City of New York, the Task Force opined, “states’ measures that are less restrictive than those in Jacobson are a constitutional exercise of their police powers.”v Essentially, the Task Force argued, vaccine mandates are constitutionally permissible within those guidelines.

 

Religious Exemptions

The Task Force further argued religious exemptions are not constitutionally required.vi The Court has previously ruled religious liberty “‘does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.’”vii Since vaccine mandates are a valid and neutral law, the Task Force argued they are constitutionally permissible.viii

 

Recommendations for Employees and Employers

In its specific discussion on employment, the Task Force stated:

NYSBA urges all employers to require that their employees be fully vaccinated. In this regard, NYSBA also urges all employers that have the capabilities to provide vaccines on-site, and to provide paid time-off for any employee who may suffer from temporary side-effects in the days post-vaccine. NYSBA now requires all its employees to be vaccinated as outlined below, and urges all law firms to do the same.ix

In addition, the Task Force recommended the following:

Recommend employers to require vaccination for current employees and applicants as a condition of employment when the employee’s job requires work to be performed on the employer’s premises or to conduct face-to-face business elsewhere on behalf of the employer, subject to medical exemptions and other recognized exceptions under applicable law (e.g., disability/medical- including in some cases, pregnancy- and sincerely-held religious beliefs) and further subject to any collective bargaining obligations. NYSBA will adopt this standard for its employees. NYSBA will urge all law firms to adopt this standard for all their employees.x

In addition to advocating for vaccination, the Task Force added suggestions on making vaccines more accessible to employees.xi Adding paid time-off and suggesting employers may hold vaccinations on-site will make vaccines more accessible to employees, but a litany of legal issues may stem from implementing such policies. While it is not clear if these recommendations will be adopted around the State, the NYSBA’s adoption will demonstrate on a micro level whether these policies should be adopted in other workplaces or if they still need refinement to remain in-step with current law and evolving public policy.

 

Moving Forward

As our understanding and response to COVID-19 and variants continues to evolve, employers should stay informed about regulations and recommendations from federal, state, and local agencies with respect to COVID-19 vaccinations. Not only is the health and safety of all employees paramount to any company, the debate surrounding vaccinations and personal rights is creating a litigious environment. Concerns over potential litigation, conflicting mandates, and employee concerns are all matters employers must now contend with.

 

 

i New York State Bar Association Emergency Task Force on Mandatory Vaccination and Safeguarding the Public’s Health, Report of the New York State Bar Association Emergency Task Force on Mandatory Vaccination and Safeguarding the Public’s Health (2021), https://nysba.org/app/uploads/2021/08/EC-Approved-Final-Report-on-Emergency-Task-Force-on-Mandatory-Vaccination-and-Safeguarding-the-Publics-Health..-with-appendix-a.pdf

ii Id. at 5.

iii Id. at 4.

iv Report at 10.

v Id. at 13; Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905) (where a smallpox vaccine mandate was upheld as a proper exercise of police power); Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015) (where a public school vaccine requirement was upheld as a proper exercise of police power).

vi Report at 14, citing Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990).

vii Id. at 14, citing F.F. v. State, 194 A.D.3d 80, 143 N.Y.S.3d 734 (2021).

viii Id.

ix Report at 28.

x Report at 28-29.

xi Report at 28-29.

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