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A Civil Rights Lawyers’ Perspective to Vaccine Mandates in New York State during the COVID-19 Pandemic

By Michael Diederich posted 01-27-2022 08:49 AM

  

A Civil Rights Lawyers’ Perspective on COVID Mandates in New York State during the Pandemic

By Michael  Diederich, Jr.[1]  27 Jan. 2022

As a civil rights practitioner who personally believes that vaccination is a vital tool for protecting society against the COVID-19 virus, I ask myself: What “civil liberties” are we talking about regarding Covid mandates?  Covid, especially in its original COVID-19 and Delta variant versions, is a deadly disease. Fighting the Covid virus has become, it seems, a culture wars fight—a highly charged game of political football, with the Red team using individual “liberty” and the Blue team using public safety to score points against each other.[2]

Yet the average citizen does not view Covid as a game.  The average citizen wants what makes sense, namely, a proper balance between individual liberty and public safety.  Individuals want to know, and agree with, the “rules of the road” as to their interaction with society.  Is refusal to wear a mask or not being vaccinated akin to driving 5 mph over the speed limit, or is it akin to driving 25 mph over while intoxicated, or something in between?  Reasonable people can disagree on where the lines should be drawn, and who draws them.  Yet for society to function properly, lines agreeable to the public must be drawn.  Public perception based upon accurate facts can create protective norms that are “socially agreeable” and, as such, respected by most citizens.  Conversely, public perceptions based upon false or misleading facts may do the opposite.

As to what is socially agreeable, let’s begin with the Nation’s foundational documents.

Overview of Governmental Power and Individual Liberty

The concept of governmentally-required inoculation against epidemics or pandemics hinges upon the notion of the society’s “greater good.”  The Nation’s foundational document, the Declaration of Independence, was written in defense of “life, liberty and the pursuit of happiness” for the People.  This “greater good” is ignored if a society allows a deadly virus to ravage[3] its population by allowing unfettered individual liberty at the expense of the life, liberty and happiness of those who succumb to the virus, as well as their family, friends and caregivers.  America’s governance is founded on protecting the greater good.  The Declaration proclaims that “governments are instituted [with] the consent of the governed” for the purpose of effectuating the People’s “safety and happiness.” 

These principles are formalized in the United States Constitution, including, as stated in its Preamble:

“to … promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity….”

Together, the Declaration and the Constitution authorize government to protect the People by enacting and enforcing federal and state law.  The governments provide a federal military, a state militia and a civil service workforce to secure the land and safeguard the citizenry and inhabitants. Federal legislation to protect the public and the environment (to secure “our Posterity”) is commonly exercised through statutes authorized by the Commerce Clause.  The states protect their inhabitants under what is commonly referred to as the states’ “police power,” which is power “reserved to the States” under the Tenth Amendment.  

Every state has a bill of rights in its constitution designed to protect state citizens against governmental abuse of power or otherwise protect the citizenry.[4] These influenced the federal Bill of Rights – the first ten amendments to the Constitution, each designed to safeguard individual liberty against governmental oppression.  The federal Bill of Rights’ protections expanded after the adoption of the 14th Amendment and the Supreme Court’s “incorporation doctrine” that made most of the Bill of Rights applicable to the states.  The Bill of Rights identifies, non-exclusively, specific rights and interests that must be protected in our republican democracy.  These include, as especially relevant to our Covid discussion, the right to freely exercise one’s religious belief (First Amendment), the right to be free from unreasonable searches and seizures (Fourth Amendment), and the rights of due process of law and to the equal protection of the law (Fifth and Fourteenth Amendments).  Important fundamental rights not specifically set forth in the Bill of Rights include the rights of privacy and personal autonomy—rights that allow the liberty of choice in contraceptive use, same sex marriage and child-bearing (and the potentially vanishing federal right to abortion if Roe v. Wade is abrogated[5]). 

While especially the Warren Court of the 1960s has employed the federal Bill of Rights to provide a counterbalance to oppression of individuals by state government, in more recent years the Supreme Court has used the Bill of Rights to decrease protection of individuals and  increase the power of government, governmental elites,[6] big business, and organized religion.[7]  State constitutions and bills of rights may become more efficacious for protecting individual rights.[8]

Our nation was founded on the notion that government is created as a social compact to protect people and our ideals of individual liberty.  Just as federal and state governmental power is not absolute, nor is liberty.  State and federal Bills of Rights provide safeguards, but not absolute protection, against governmental power.  Reason and rationality are used (at least in principle) to balance competing governmental and individual interests and provide outcomes acceptable to the larger society.  Societal acceptance is generally expressed through governmental officials, for example, representatives such as the President or a Governor in executing their duties, or a legislature in enacting a law, or a court in deciding a case. 

In our representative democracy, the public ordinarily has no direct say.  We live in, and the Constitution guarantees, a “republican form of government.”[9]  In theory this is for the best, as public opinion can be fickle, ill-advised and inflamed by passion and bias, with calm assessment of actual evidence playing little part.  Yet elected and appointed officials can also disappoint.  Reason is too often in the eye of the beholder and dictated by emotion not evidence.[10]  Our smartest citizens—even the leaders of our nation—sometimes make the most unwise decisions.[11]  

Ideally, the more informed and educated the decision-maker the better the rationale for the decision.  Examples may be a legislature enacting a law after holding hearings examining the arguments pro and con, or a judge or jury adjudicating a lawsuit after considering the evidence, or an appellate court establishing a legal precedent after careful thought.  In practice, however, human emotions and bias often trump reason.  For example, partisan self-interest may incline legislators or governors to succumb to the demands of their ambition or their political “base,” even if it is an unreasoning populist mob.

With the above in mind, let’s turn to governmental restrictions on personal liberty arising during the Covid pandemic, starting with some background concerning mandatory immunizations.

Government-mandated vaccination --generally

Isolating the sick, such as in leper colonies in the Middle Ages, is as old as history, and thus social distancing and isolation are not new.  Immunization, on the other hand, is of recent (and American) vintage.  During the Revolutionary War, General George Washington took a risk by using new scientific knowledge to order his troops inoculated against smallpox. His decision helped win the Revolutionary War.[12]  As the years passed, and the science became more compelling about the benefits of vaccination, legislatures in every state enacted laws requiring childhood immunizations against diseases such as measles, mumps, diphtheria, tetanus and polio.  New York State, for example, requires immunization of all schoolchildren and college students against various viral infections.[13]  The law provides an exemption if a “physician licensed to practice medicine in this state certifies that such immunization may be detrimental to a child's health.”[14]

Worldwide, vaccines have saved hundreds of millions of human lives, and an estimated 4-5 million lives annually.[15]  Until it was eradicated with the vaccine, smallpox (Variola) killed up to 30 percent of persons infected. 

The benefits of inoculation became apparent to the U.S. Supreme Court as early as 1905.  Notwithstanding the liberty interest in people’s autonomy and the fact that any vaccination carries a risk, the U.S. Supreme Court in Jacobson v. Massachusetts[16] upheld the power of government to require vaccinations.  Justice John Marshall Harlan delivered the 7-2 majority opinion, explaining that:

“in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand….” 

Justice Harlan went on to write that:

“[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.”[17]

Mandatory vaccinations, the Court held, are permissible to the extent “reasonably required for the safety of the public.” In “extreme cases,” for persons “in a particular condition of ... health,” where the requirement of vaccination would be “cruel and inhuman[e],” the courts would be empowered to interfere in order to “prevent wrong and oppression.”[18] 

Not everyone agreed that government should be allowed to invade a person’s body with a foreign substance.  The Anti-Vaccination League of America was founded three years after the Jacobson decision, promoting the view that “health is nature’s greatest safeguard against disease and that therefore no State has the right to demand of anyone the impairment of his or her health.”[19]  The League feared both vaccination and government intrusion into private life.  It asked:

“We have repudiated religious tyranny; we have rejected political tyranny; shall we now submit to medical tyranny?[20]

Nonetheless, medical science prevailed over unsupported (and thus unreasonable) fear.  In the years that followed Jacobson, the Supreme Court reaffirmed its decision in Zucht v. King (1922),[21] which held that a school system could refuse admission to a student who failed to receive a required smallpox vaccination.

The Initial COVID-19 Response during 2020

The 1918 Flu Pandemic was an eye-opener for the world, and scientists ever since have been studying how best to deal with future pandemics.  Covid struck the United States, and we had our collective guard down.  For example, the Trump Administration had largely disbanded the “pandemic response team” that had been established to deal with pandemics.[22]  When Covid first hit America’s shores, we were not sure when, where or how severely.

New York City became “ground zero” as the virus spread with deadly effect.  Government closed most of the City and surrounding metropolitan area for all but essential businesses.  Life, and work, became “virtual.”  Governor Andrew Cuomo became quite the celebrity,[23] and received general public approval, for his handling of the pandemic (at least until accounts of nursing home deaths began to surface, followed by reports of sexual harassment of staff by the Governor resulting in his resignation).

Covid spread quickly to other parts of the nation, but fortunately, science came to the rescue.  National vaccine programs have existed since the 1960s, and saved millions of lives.[24]  With the active support of the Trump Administration through Operation Warp Speed, and a great deal of fortuity,[25] pharmaceutical companies used their vaccine knowledge to develop COVID-19 vaccines in record time.  Government then embarked on a push to inoculate the public, to abate the pandemic. 

Covid Mandates for Federal Employees & the Military

By the end of 2020, COVID-19 vaccines were being approved, first with “emergency” (temporary) authorizations.[26]  By early 2020 many Americans were eagerly seeking immunization, which was initially rationed to the most vulnerable people first (the elderly and infirm).  As vaccines became readily available mid-2020, the federal and state governments actively urged vaccination as the best means to deal with the Covid crisis.

Yet the push to vaccinate was too quick for many, with skepticism often connected to political affiliation. With deaths mounting to over 800,000 nationally by December 2021, governments began mandating vaccinations of various segments of the populace.  This included people working in vital industries and occupations, especially the military and emergency services and health care, but also the citizenry generally, recognizing that vaccines were the best means to slow (or perhaps even stop) the spread of Covid.

Because government can exercise power as an employer over its work force, many governments began placing demands upon the civil service to fight Covid.  The U.S. military did so.  Military readiness is vital to national defense.  Accordingly, in August 2021, the U.S. military was informed that COVID-19 vaccinations would be mandatory,[27] and the military is now implementing this directive.  (The author experienced a similar mandate when he was required, as a U.S. Army reservist, to take an anthrax vaccine.[28]) A lawsuit challenging a 2021 vaccine mandate (for persons previously infected) was filed in September 2021.[29]  A federal court in Texas has upheld a challenge by a group of 26 unnamed Navy SEALs.[30]

The federal government then imposed mandates upon its civilian work force.  By Executive Order signed September 9, 2021, the Biden Administration required that the 3.5 million strong federal workforce to be vaccinated, with limited exceptions.[31]  An earlier policy had required compliance with masking, social distancing and COVID-19 testing requirements.[32] 

Apart from the executive branch, the Congress required its members to wear masks (some refused[33]).  The federal and New York state judiciary likewise took action to protect judicial personnel and the public.[34]  The U.S. Postal Service is an independent agency that operates under a private sector collective bargaining model. As such, it was not required to obey the dictates of the executive branch.  However, like private sector employment discussed next, the USPS was required to comply with the OSHA rules and collective bargaining requirements.[35]  

Government Mandates for Private Sector Employment

The government can regulate private employment, for example, through anti-discrimination laws, labor relations regulation and occupational health and safety rules.  This can be at the federal, state and local level. Government has now sought to provide workers with anti-Covid protection.

Federal Covid regulation

Most significantly (and controversially), in the autumn of 2021, the Biden Administration implemented nation-wide vaccine and Covid testing mandates applicable to the private sector through an OSHA rule, applicable to employers with 100 or more employees, and a Department of Health and Human Services requirement that healthcare workers be fully vaccinated at facilities receiving Medicare or Medicaid funds.[36]  The U.S. Supreme Court held a special hearing to consider the legality of these mandates on January 7, 2022, and a week later invalided the OSHA directive.[37] The Court ruled that Congress had not given OSHA the emergency authority OSHA was asserting, even though, according to the dissent, the statute clearly did. And since our dysfunctional Congress that cannot agree on almost anything, thousands of Americans will likely die because of partisan politics generally[38] and this partisan decision by the Supreme Court.[39]  

The Supreme Court did, however, uphold the Biden Administration’s mandate that health care workers be vaccinated at facilities receiving federal dollars.[40]  Unvaccinated healthcare workers must receive their first vaccine doses by January 27, 2022.  This will affect about 10 million workers.[41]  

State regulation

State government can issue Covid-related mandates, and most have.  New York State government—particularly its former governor—was very involved in issuing governmental mandates and Covid-related measures almost from the start of the pandemic.  Governor Cuomo received high praise during the early months of the pandemic,[42]  though he was criticized for his re-direction of nursing home residents ill with Covid back into the nursing homes.

Nonetheless, all three branches of state government were active participants in attempting to protect the public’s health after Covid hit the state with a vengeance in 2020.  The result is a state that is now largely “back in business,” with most of its residents vaccinated. New political conflicts have arisen over school mask mandates, with Governor Hochel’s order held to be beyond her authority by a Nassau County Supreme Court judge,[43] which order was promptly stayed pending appeal, resulting in conflicts and confusion by parents of schoolchildren throughout the state.

Local regulation

With almost half the population of the state, New York City is practically a “state within a state,” and has a great deal of autonomy under New York law.  The City, and in particular its mayor, has taken a number of regulatory actions in response to Covid, the most significant of which fall into four categories:  1) the NYC schools, 2) the NYC public workforce, 3) the private workforce and 4) the conduct of business in NYC.

The public schools and many businesses were at first closed, but with the advent of vaccines and increased understanding of Covid protective and mitigation measures, by the fall of 2021 the schools and most businesses have finally opened up.  The Mayor, via his Health Commissioner’s Order, imposed a requirement that all city employees receive the Covid vaccine by 5 pm on October 29, 2021, after having earlier required this of city healthcare and department of education workers.[44]  As of September 13, 2021, New York City became the first municipality in the nation to require proof of COVID-19 vaccination at restaurants, gyms and other businesses.[45]  

In December 2021, just as the Omicron variant began sweeping across the nation and hitting New York State hard, Mayor de Blasio expanded the city’s vaccination requirements to all private sector employees—184,000 businesses—effective December 27th.[46]  New York became the first city in the nation to do so.  The City also required proof of vaccination for children over 4 years of age for indoor dining, fitness and entertainment, and mandated  by December 27th a second dose of the vaccine under the “Key to NYC program.”  Thus, the City’s mandatory private sector vaccine requirements went into effect within seven days of the U.S. Supreme Court above-referenced hearing argument in National Federation of Independent Business v. OSHA.  President Biden was constrained by the Supreme Court.  Newly elected Mayor Eric Adams has not been so constrained in exercising the City’s police power, and he has decided to keep most of his predecessor’s Covid policies.[47]

“Live Free and Die” jurisdictions

In contrast to the anti-Covid measures described above, several “Red state” elected officials have taken a quite different approach from states governed by Democrats.  Florida Governor Ron DeSantis, a Republican, issued an executive order on July 30, 2020 barring schools from requiring face coverings, saying parents should make that decision for their children.[48]  The Arkansas legislature enacted a law that prohibits state and local governments, including school boards, from mandating masks.[49]

Likewise in Texas, Gov. Abbott supported as “a priority” a legislative bill intended to block any Texas entity, including hospitals and private businesses, from mandating COVID-19 vaccines for employees.  The bill failed to pass the Texas Legislature after business groups spoke out against the proposals.[50] This was after Governor Abbott issued an executive order banning any entity in Texas, including private businesses, from requiring COVID-19 vaccinations for employees or customers.[51]  Taking precisely the opposite approach to New York’s Governor Hochel, Texas Governor Abbott has also succeeded so far in preventing mask mandates in public schools.[52]  As to Covid, and perhaps especially the omicron variant, masks for children may be both unnecessary and detrimental to learning.[53]

Non-Governmental Mandates

Mandates by Private Sector Employers

Apart from government regulation, the employee-employer relationship is generally governed by contract law and is most commonly “at will” employment, where either party can end the employment relationship at any time, for any (non-unlawful) reason.   This means that absent a contractual constraint (e.g., a union’s collective bargaining agreement), the employer can impose conditions on employment.

In this regard, the private sector, including many large U.S. companies, has taken steps to protect its workforce against Covid.  For example, after the Delta variant threat arose in mid-2021, Detroit’s Big Three automakers and the United Auto Workers (UAW) union said they will reinstate requirements to wear masks at all U.S. plants, offices and warehouses, although they did not go so far as to require that workers be vaccinated.[54] Alphabet Inc. (Google) and Facebook Inc. have required all U.S. employees must get vaccinated to step into the office workplace.[55]   Likewise, United Airlines and Netflix Inc. implemented policies mandating vaccinations for their U.S.-based employees.[56]

One issue that is becoming commonplace is whether employees fired for not agreeing to employer-imposed vaccine mandates are entitled to unemployment insurance.  Some state governments (particularly “Red” ones) have made this non-disqualifying.[57]  Some state officials have even proposed making it unlawful for employers to “discriminate” against  employees for asserting their purported liberty to not be vaccinated or wear masks on the job. 

So let us now discuss the possible legal protections for employees who oppose Covid vaccinations (and other mandates) on various grounds.

Laws Protecting Individual Rights

To be protected by law, there must be a protected right or interest.  If there is, then a person is entitled to due process by the government. If a person fears that a vaccination might result in death, or might violate a religious belief, is a right involved?  When does a person’s fear of adverse effects from a vaccine (scientifically or religiously founded or not) outweigh the governmental interest?  Does the balancing between governmental and individual interests change when the fear appears justifiable and reasonable—for example, where the FDA has not given final approval for vaccination of the very young or pregnant women?

Where none of the governmental or private business regulation mentioned above is involved, people interact with each other as free individuals.  As such, they can agree to become employed by others, and if so, must abide by the terms of their employment lest the employer terminate the employment relationship. The relationship is contractual, whether the employment is “at will” (the employee can resign, or be terminated, at any time), or for a specific duration, or collectively bargained. 

Anti-Discrimination Laws and Covid mandates

An “at will” employee can be fired for any reason, but not for an unlawful reason.  There are numerous federal, state and local laws and regulations governing employment and workers’ rights, for example, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act  and the Family Medical Leave Act, to name a few federal statutes, with parallel provisions contained in the New York State Human Right Law[58] and New York City administrative code.[59]  Some of these federal, state or local laws provide exemptions for religion and disability reasons, commonly requiring employers to engage in the interactive process. 

The ADA

Under the Americans with Disabilities Act (“ADA”),[60] and parallel New York State and New York City law, for example, an employer-employee dialogue is needed to ascertain whether, for an employee with a qualifying impairment, the essential functions of a job can be performed with a reasonable accommodation.  Under the ADA, the law is clear—employers must engage in the interactive process and afford a reasonable accommodation to the physically or psychologically impaired (or disabled) person.  The employer must establish an undue hardship to deny the requested accommodation as objectively unreasonable. 

For example, an employee may suffer from severe anxiety episodically triggered by fear of a vaccine, or may suffer from trypanophobia—the fear of needles held by perhaps 25% of the population[61] —is a recognized psychological disorder.[62]  If such fear is severe enough to cause a physical or psychological impairment, the affected person may find some protection under the ADA or parallel state or local law.  The attorney must be cognizant that human beings do not ordinarily enjoy being stuck by needles, and mere dislike of a needle alone will not suffice as a credible claim.

The FMLA

If an illness, rather than a disability, is involved, an employee may have protection under the Family Medical Leave Act (FMLA)[63] or parallel state law provisions.  For example, a person or covered family member becoming ill with Covid or related illness (or any other covered illness) may be entitled to up to 12 weeks medical leave under the FMLA.  The new State analogue is the N.Y.S. Paid Family Leave 2021 Act, effective January 1, 2021, allows for leave of up to 12 weeks including to workers who stay home to care for a new baby, a family member with medical needs, or to comply with an order relating to Covid.[64]  The New York City analogue is the Paid Safe and Sick Leave Law.[65]  On October 12, 2021, the New York State Department of Labor updated its guidance regarding paid leave time for COVID-19 vaccinations to address the applicability of the Paid Vaccination Leave Law to COVID-19 booster shots.

Title VII – religious discrimination

Title VII of the Civil Rights Act of 1964 protects employees against discrimination based upon their religious beliefs.  The U.S. EEOC has issued extensive guidance on the subject of religious discrimination in its updated Compliance Manual,[66] explaining that:

“Title VII protects workers from employment discrimination based on their … religion… or protected activity.  Under Title VII, an employer is prohibited from discriminating because of religion in hiring, promotion, discharge, compensation, or other ‘terms, conditions or privileges’ of employment, and also cannot ‘limit, segregate, or classify’ applicants or employees based on religion ‘in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.’  The statute defines ‘religion’ as including ‘all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] is unable to reasonably accommodate . . . without undue hardship on the conduct of the employer’s business.’ ‘Undue hardship’ under Title VII is not defined in the statute but has been defined by the Supreme Court as ‘more than a de minimis cost’ – a lower standard for employers to satisfy than the ‘undue hardship’ defense under the Americans with Disabilities Act (ADA), which is defined by statute as ‘significant difficulty or expense.’” (citations omitted

The Compliance Manual goes on to explain that:

“These protections apply whether the religious beliefs or practices in question are common  or non-traditional, and regardless of whether they are recognized by any organized religion.  The test under Title VII’s definition of religion is whether the beliefs are, in the individual’s ‘own scheme of things, religious.’ Belief in God or gods is not necessary; nontheistic beliefs can also be religious for purposes of the Title VII exemption as long as they ‘occupy in the life of that individual “a place parallel to that filled by . . . God” in traditionally religious persons.’ The non-discrimination provisions of the statute also protect employees who do not possess religious beliefs or engage in religious practices. EEOC, as a federal government enforcement agency, and its staff, like all governmental entities, carries out its mission neutrally and without any hostility to any religion or related observances, practices, and beliefs, or lack thereof.” (citations omitted)

The EEOC has also issued guidance relating to COVID.[67]  The above EEOC guidance provides broad protection.  Thus, if an employee has a religious objection to, say, the COVID-19 vaccine, or wearing a mask, or social distancing, or recognizing the existence of the Covid virus or the pandemic, the employee may have the right to a reasonable accommodation of his or her religious beliefs, if such are (as with conscientious objectors) “sincerely held.”

However, the objection must still be religion-based.  Before the attorney asserts a “religious discrimination” claim, it must be clear that the claim is not founded on non-religious reasons, with some common reasons being:

     (1) the vaccines were not sufficiently tested before being approved and distributed under the Emergency Use Authorization (EUA) statute;

     (2) insufficient time has elapsed to determine the long-term effects of the vaccines;

     (3) there have been cases where vaccine recipients have experienced undesirable side effects and even death;

     (4) insufficient evidence exists to demonstrate that the vaccines are, in fact, medically effective in immunizing the recipient from contracting the virus.

The U.S. Supreme Court is becoming increasingly receptive to protecting America’s religiosity.  Although the court clearly held in 1990 that religious belief does not generally provide immunity from nondiscriminatory laws of general applicability,[68] the U.S. Supreme Court employed what has been called its “shadow docket” to enjoin California from enforcing its COVID–19 restrictions on private gatherings as applied to applicants’ at-home religious exercise (pending disposition of the appeal in the Ninth Circuit and any ensuing petition for a writ of certiorari).[69]

The U.S. Supreme Court’s view as to First Amendment free exercise rights may well affect how existing anti-discrimination statutes are interpreted, particularly if the executive branch seeks broader coverage that what the Supreme Court deems Congress to have authorized (recently rejecting OSHA’s vaccination mandates, while allowing the Health and Human Services Covid mandates for health care workers.[70]

NLRB & “Decisional” and “Effects bargaining”

Under the National Labor Relations Act, as well as corresponding state law, employers have the legal duty to bargain in good faith as to conditions of work and mandatory subjects of bargaining.[71] Mandatory workplace masking and Covid vaccinations are certainly subjects requiring discussion.  At a minimum, it would appear that the Title VII and ADA requirements for an interactive dialog regarding reasonable accommodations should be addressed.  Unions have a “duty of fair representation” of their members,[72]  and thus ignoring their members’ Title VII and ADA rights may breach such duty and thus violate the Act. Thus, employees may have viable NLRB administrative complaints (but beware, the limitations period is short).[73]

State and local laws

Federal antidiscrimination laws usually have state analogues, and often city analogues, and these may vary in the amount of protection afforded employees.  For example, the New York City regulations provide, for the most part, greater protections than the State Human Rights Law.  This is important to know when deciding when and where to file an administrative complaint, including when cross-filing with the EEOC.

Lawyer Ethics

Potential clients coming to a lawyer’s office may wish to assert known rights, perceived rights, unestablished rights or fantasized rights.  New York lawyers have professional responsibilities when representing clients claiming violations of their rights.[74]  Lawyers must reasonably educate themselves as to what the law is, in other words, to act with professional competence and diligence.[75] The lawyer must not intentionally assert non-meritorious claims and contentions,[76] and must be truthful in statements to others,[77] and have respect for the rights of third persons. [78]  The lawyer must exercise independent professional judgment, and can permissibly seek the advancement of the law, even if such might adversely affect a client, [79] noting the duty of loyalty to a client and avoidance of conflicts of interest.[80]

When representing a client—employee, employer, the government or an interest group—the rules of professional responsibility must be kept in mind.  As a noble profession,[81] we should advocate for the public interest when not lawfully advocating for our clients. 

Conclusion

It is clear that government can require inoculation when necessary to protect the larger society.  Employers can likely require vaccinations, especially now that full FDA approval has been issued.  The two most likely legal justifications for vaccine refusal are religious belief under Title VII or the need to accommodate a disability under the ADA, either of which may require an interactive dialogue to establish whether a reasonable accommodation is needed. 

A lawyer can legitimately fight to assert a client’s religious or disability rights not to be vaccinated.  If the client dies in the process, because he or she contracted the deadly disease that the vaccine would have protected against, the lawyer might regret not having providing the lay advice “get the shot.” The lawyer can prudently decline representation if the client’s plausible assertions smell of disingenuousness.  And the lawyer must always reject a client whose claims are clearly false or made in bad faith.

Michael Diederich, Jr. 
Diederich Law Office
Stony Point, NY         January 27, 2022   

The opinions expressed herein are the author’s alone.

 

[1] The author appreciates the assistance of Donald Mallo, Esq., in the preparation of this article.

[2] Mary Scouten, The Intersection of Partisan Affiliation, Political Polarization, and COVID-19 Pandemic Response, NYSBA Health Law Journal, Vol. 26, No. 3 (2021).

[3] It appears that COVID-19 kills, on average, 1 in 100 people over 65 years of age.  This should qualify as “ravaging.”  See, Julie Bosman, Amy Harmon and Albert Sun, As U.S. Nears 800,000 Virus Deaths, 1 of Every 100 Older Americans Has Perished, NY Times, December  13, 2021, available at https://www.nytimes.com/2021/12/13/us/covid-deaths-elderly-americans.html.
  As reported by the CDC:

“During January 26, 2020–February 27, 2021, an estimated 545,600 – 660,200 more persons than expected died in the United States from all causes (Figure). The estimated number of excess deaths peaked during the weeks ending April 11, 2020, August 1, 2020, and January 2, 2021. Approximately 75%–88% of excess deaths were directly associated with COVID-19.”

https://www.cdc.gov/mmwr/volumes/70/wr/mm7015a4.htm 

[4] See, Duncan Hosie, With the Supreme Court lurching right, state courts offer liberals hope, Washington Post, December 27, 2021, available at https://www.washingtonpost.com/outlook/2021/12/27/with-supreme-court-lurching-right-state-courts-offer-liberals-hope/.

[5] See, Amy Davidson Sorkin, The Supreme Court Looks Ready to Overturn Roe v. Wade, Daily Comment, The New Yorker, December 2, 2021, available at https://www.newyorker.com/news/daily-comment/the-supreme-court-looks-ready-to-overturn-roe.

[6] McDonnell v U.S., 136 S.Ct. 2355 (2016) (Corporate money to former Virginia Governor trumps citizens’ right to non-corrupt government).

[7] See, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (corporate “speech via money”); Hosanna Taber (laws protecting employees inapplicable to religious “ministers,” even if lay); Shelby County v. Holder, 133 S.Ct. 2612 (2013) (African-Americans’ voting rights no longer need protection).

[8] See, Duncan Hosie, With the Supreme Court lurching right, state courts offer liberals hope, Washington Post, December 27, 2021, available at  https://www.washingtonpost.com/outlook/2021/12/27/with-supreme-court-lurching-right-state-courts-offer-liberals-hope/; William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (January, 1977), available at https://www.law.berkeley.edu/wp-content/uploads/2017/07/Brennan-90_HVLR_489.pdf ; William J. Brennan Jr., “The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights,” 61 N.Y.U. L. Rev. 535, 548 (1986).

[9] U.S. Constit., Art. IV, § 4.

[10] See, Daniel Kahneman, Thinking, Fast and Slow (2011).

[11] Examples: Our wars in Iraq, Afghanistan and Vietnam by the executive branch; McCarthyism by the legislative branch; and Dred Scott, Plessey v. Ferguson and Citizens United by the Supreme Court.

[12] See, U.S. Library of Congress article “George Washington and the First Mass Military Inoculation, https://www.loc.gov/rr/scitech/GW&smallpoxinoculation.html

[13] See, N.Y.S. Public Health Law § 2164 (schools) & § 2165 (college) and N.Y.S. Education Law § 914; see also, New York State Vaccine Requirements, posted July 07, 2021, https://www.nvic.org/Vaccine-Laws/state-vaccine-requirements/newyork.aspx

[14] Id.  

[15] https://www.who.int/news-room/facts-in-pictures/detail/immunization

[16] 197 U.S. 11 (1905).

[17] Id.

[18] Id.

[19] https://en.wikipedia.org/wiki/Jacobson_v._Massachusetts

[20] Id.; Toward a Twenty-First-Century Jacobson v. Massachusetts, 121 Harvard L. Rev. 1823–1824 (May 2008), http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/a_twenty-first-century_jacobson_v_massachusetts.pdf. (which article clearly does NOT contemplate the arrival of COVID-19).

[21] 260 U.S. 174 (1922).

[22] See, Partly false claim: Trump fired entire pandemic response team in 2018, Reuters, March 25, 2020, available at https://www.reuters.com/article/uk-factcheck-trump-fired-pandemic-team/partly-false-claim-trump-fired-entire-pandemic-response-team-in-2018-idUSKBN21C32M

[23]  A humorous accolade by comedian Randy Rainbow is available at https://www.youtube.com/watch?v=2Kydr2a7Uy4. This “aged like a fine glass of milk.”

[24] See, Andrew J. Pollard & Else M. Bijker , A guide to vaccinology: from basic principles to new developments, Nature,  22 December 2020, available at https://www.nature.com/articles/s41577-020-00479-7 .

[25] Gina Kolata and Benjamin Mueller, Halting Progress and Happy Accidents: How mRNA Vaccines Were Made, The New York Times (Jan. 15, 2022), https://www.nytimes.com/2022/01/15/health/mrna-vaccine.html.

[26] See, Emergency Use Authorization for Vaccines Explained, U.S. FDA, November 20, 2020, at https://www.fda.gov/vaccines-blood-biologics/vaccines/emergency-use-authorization-vaccines-explained.

[27] See, “Pentagon Requiring COVID-19 Vaccine for US Troops,” 9 August 2021, Military.com, available at https://www.military.com/daily-news/2021/08/09/pentagon-requiring-covid-19-vaccine-us-troops.html.

[28] See, e.g., https://pubmed.ncbi.nlm.nih.gov/22874851/.

[29] See, Todd South, Soldier, Marine lawsuit challenges mandatory COVID vaccinations for those who’ve had the virus, Army Times, September 3, 3032, available at https://www.armytimes.com/news/your-army/2021/09/03/soldier-marine-lawsuit-challenges-mandatory-covid-vaccinations-for-those-whove-had-the-virus/ ,  and Army Regulation 40-562 (which the lawsuit asserts “presumptively exempts from any vaccination requirement for a service member that the military knows has had a documented previous infection…”).

[30] See, Patricia Kime, Judge Blocks Navy's Discipline of SEALs for Refusing the COVID-19 Vaccine, Military.com, 4 Jan 2022, https://www.military.com/daily-news/2022/01/04/judge-blocks-navys-discipline-of-seals-refusing-covid-19-vaccine.html 

[31] See, Update on Implementation of COVID-?19 Vaccination Requirement for Federal Employees, November 24, 2021, available at https://www.whitehouse.gov/omb/briefing-room/2021/11/24/update-on-implementation-of-covid-19-vaccination-requirement-for-federal-employees/;

[32] See,  Federal employees must attest to vaccination or submit to testing, per new Biden policy,  July 29, 2021, available at: https://federalnewsnetwork.com/workforce/2021/07/federal-employees-must-attest-to-vaccination-or-submit-to-testing-biden-says/

[33] See, Luke Broadwater, 2 Georgia Republicans Rack Up Fines for Defying House's Mask Mandate, NY Times, December 29, 2021, available at https://www.nytimes.com/2021/12/29/us/mask-mandate-fines-greene-clyde.html?smid=em-share

[34] See, e.g., Court Orders and Updates During COVID-19 Pandemic, U.S. Courts, https://www.uscourts.gov/about-federal-courts/court-website-links/court-orders-and-updates-during-covid19-pandemic; and Coronavirus and  the New York State Courts, N.Y.S. Unified Court System, https://www.nycourts.gov/index.shtml.

[35] See, USPS Statement on COVID-19 Vaccines, Sept. 16, 2021, available at https://about.usps.com/newsroom/statements/091621-usps-statement-on-covid19-vaccinations.htm   see generally, USPS, exempt from vaccine requirements, sees uptick of employees in quarantine, August 3, 2021, available at: https://federalnewsnetwork.com/workforce/2021/08/usps-exempt-from-vaccine-mandate-sees-uptick-in-employees-in-quarantine/

[36] See, https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/.  The U.S. Sixth Circuit Court of Appeals reinstated the rule on December 17, 2021.  See, https://www.nytimes.com/2021/12/17/business/osha-vaccine-mandate.html.

[37] National Federation of Independent Business v. OSHA, 595 U.S. __ (2022), https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf.

[38] See, Kurt Andersen, The Anti-Vaccine Right Brought Human Sacrifice to America (Jan. 25, 2022), https://www.theatlantic.com/ideas/archive/2022/01/human-sacrifice-ritual-mass-vaccination/621355/.

[39] See, Kimberly Wehle, The Supreme Court Has Anointed Itself Czar of the Country's COVID Rules, The Atlantic (Jan. 14, 2022), https://www.theatlantic.com/ideas/archive/2022/01/supreme-court-vaccine-mandate-congress-osha-states/621250/.

[40] Adam Liptak, Supreme Court Blocks Biden's Virus Mandate for Large Employers, The New York Times (Jan. 13, 2022), https://www.nytimes.com/2022/01/13/us/politics/supreme-court-biden-vaccine-mandate.html

[41] See, The deadline arrives for unvaccinated health workers in half of the U.S. to get a first dose, NY Times (Jan. 27, 2022), https://www.nytimes.com/live/2022/01/26/world/omicron-covid-vaccine-tests/the-deadline-arrives-for-unvaccinated-health-workers-in-half-of-the-us-to-get-a-first-dose.

[42] His book describing his (in his eyes) his outstanding efforts got him in trouble with the N.Y.S. Ethics Commission.  See, Vanessa Romo, New York ethics panel wants former Gov. Cuomo to turn in the cash from his book deal (Dec. 14, 2021), https://www.npr.org/2021/12/14/1064266940/ethics-panel-andrew-cuomos-book-deal-money-more-than-5-million.

[43] State Supreme Court Judge Thomas Rademaker ruling was stayed the next day.  See, Luis Ferré-Sadurní and Grace Ashford, New York State’s mask policy is back in effect after a judge grants a stay, The New York Times  (Jan. 25, 2022), https://www.nytimes.com/2022/01/25/nyregion/nyc-mask-mandate-ruling.html.   

[44] See, https://www1.nyc.gov/office-of-the-mayor/news/698-21/mayor-de-blasio-vaccine-mandate-new-york-city-workforce.

[45]  Maria Caspani and Dan Whitcomb, New York becomes first U.S. city to order COVID vaccines for restaurants, gyms, Reuters (Aug. 3, 2021), https://www.reuters.com/world/us/nyc-require-proof-vaccination-indoor-activities-mayor-2021-08-03/.

[46] See, https://www.ny1.com/nyc/all-boroughs/coronavirus/2021/12/06/city-requiring-vaccination-for-private-employees

[47] See, Dana Rubinstein and Joseph Goldstein, Adams’s Virus Policy Includes Keeping Vaccine Mandate for Businesses, NY Times, December 30, 2021, available at https://www.nytimes.com/2021/12/30/nyregion/eric-adams-vaccine-mandate-private-employers.html.

[48] Sarah Mervosh, Florida’s governor gives parents final say on masks for children in school, (July 30, 2020), The New York Times, https://www.nytimes.com/2021/07/30/us/florida-desantis-masks-schools.html.

[49] Id.

[50] See, https://www.texastribune.org/2021/10/18/texas-covid19-vaccine-mandates-bill/

[51] See, https://www.texastribune.org/2021/10/11/texas-greg-abbott-covid-19-vaccine-mandate/

[52] See, Chuck Lindell, Appeals court blocks federal judge's ruling that allowed Texas schools to mandate masks, Austin American-Statesman, Dec. 2, 2021, available at https://www.statesman.com/story/news/2021/12/02/appeals-court-blocks-order-allowed-mask-mandates-tx-schools/8835135002/

[53] See, Margery Smelkinson, Leslie Bienen, and Jeanne Noble, The Case Against Masks at School, The Atlantic (Jan. 26, 2022), https://www.theatlantic.com/ideas/archive/2022/01/kids-masks-schools-weak-science/621133/.

[54] See, Big Tech starts requiring vaccines; Twitter closes re-opened U.S. offices, Reuters, July 29, 2021, available at https://www.reuters.com/world/us/google-will-require-covid-19-vaccine-us-employees-step-into-campuses-2021-07-28/.

[55] Id.

[56] Id.

[57] See, Lisa Rowan, Won't Get The Covid Vaccine? If You Lose Your Job, You May Not Get Unemployment Benefits, Forbes Advisor, December 6, 2021, available at  https://www.forbes.com/advisor/personal-finance/vaccine-mandate-unemployment-eligibility/.

[58] See, N.Y.S. Executive Law § 276 et seq

[59] See, N.Y. City Administrative Code.

[60] 42 U.S.C. ch. 126, § 12101 et seq., incorporating the ADA Amendments Act of 2008.

[61] Melinda Ratini, DO, MS, What to Know About the Fear of Needles (Trypanophobia), WedMD (June 17, 2021), https://www.webmd.com/anxiety-panic/what-to-know-fear-of-needles.

[62] Cf., Stevens v. Rite Aid Corp., 851 F.3d 224 (2017) (pharmacist fearful of needles not protected by ADA).

[63] See, 29 U.S.C. § 2601 et seq.

[64] The New York law offers employees 67% of their average weekly wage, up to a maximum weekly benefit rate of $971.61.

[65] NYC Paid Safe and Sick Leave Law, https://www1.nyc.gov/site/dca/about/paid-sick-leave-law.page

[66] Commission Approves Revised Enforcement Guidance on Religious Discrimination, U.S. EEOC, 01-15-2021, https://www.eeoc.gov/newsroom/commission-approves-revised-enforcement-guidance-religious-discrimination.

[67] See, EEOC Guidance on COVID on April 6, 2020 and December 14, 2020.

[68] See, Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

[69] See, Tandon v. Newsom, 593 U.S. __ (2021), available at https://www.supremecourt.gov/opinions/20pdf/20a151_4g15.pdf;  but see, Andrew Chung, U.S. Supreme Court rejects religious challenge to New York vaccine mandate, Reuters, December 13, 2021, https://www.reuters.com/world/us/us-supreme-court-rejects-religious-challenge-new-york-vaccine-mandate-2021-12-13/ , decision available at https://www.supremecourt.gov/opinions/21pdf/21a145_gfbi.pdf.

[70] National Federation of Independent Business v. OSHA, 595 U.S. __ (2022), https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf; Adam Liptak, Supreme Court Blocks Biden's Virus Mandate for Large Employers, The New York Times (Jan. 13, 2022), https://www.nytimes.com/2022/01/13/us/politics/supreme-court-biden-vaccine-mandate.html

[71] NLRA §§ 8 (d) & 8 (a)(5);  see also, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/bargaining-in-good-faith-with-employees-union-representative

[72] See, e.g., https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/right-to-fair-representation, see, also, NLRB’s General Counsel memorandum No. GC 20-04, “Case Summaries Pertaining to the Duty to Bargain in Emergency Situations” dated          3/27/2020, available at https://www.nlrb.gov/guidance/memos-research/general-counsel-memos.  

[73] See, November 10, 2021 Memo from the NLRB’ General Counsel to the NLRB’s Regional Directors, Officers-in-Charge, and Resident Officers reaffirming the employer’s bargaining obligations,  Memorandum OM 22-03. Although this guidance was in response to the now defunct OSHA regulations, the rationale remains the same.

[74] See, Michael Diederich, Jr., The Ethics of Advocating for the COVID vaccine hesitant, NYSBA (forthcoming, February 2022).

[75] See, N.Y.S. Appellate Division’s Rules of Professional Responsibility, 22 N.Y.C.R.R. Part 1200, Rules 1.1 (competence) and Rule 1.2 (diligence).

[76] Id., Rule 3.1.

[77] Id., Rule 4.1.

[78] Id., Rule 4.4.

[79] Id., Rule 6.4.

[80] Id., Rule 1.7.

[81] Joseph A. Califano Jr., The Law: Once a Noble Profession (Jan. 28, 1996), Washington Post, https://www.washingtonpost.com/archive/opinions/1996/01/28/the-law-once-a-noble-profession/7f4c7c51-9045-4559-9fbe-b64b9fddcc8b/


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