Permissibility of Requiring That Employees at Public School and Community College Districts Receive the COVID-19 Vaccination

Given the recent news coverage concerning COVID-19 vaccines and the government’s distribution plan for such vaccines, many of our clients have inquired whether it will be permissible to require school and community college district employees be vaccinated for COVID-19. This question is important from a public health perspective, complicated from a legal one, and almost certain to create controversy.[1]

This bulletin is intended to provide a high-level summary of our current legal analysis[2] on this issue, including on the following subjects: (1) the permissibility of requiring COVID-19 vaccinations; and (2) the exceptions to a vaccination requirement.

While this bulletin addresses each of these subjects in greater depth, Liebert Cassidy Whitmore’s general position on the subjects is as follows:

(1) It is seemingly permissible for districts to require that employees be vaccinated for COVID-19, so long as the requirement is narrowly tailored to cover only those employees who report to school worksites or facilities and who would pose a direct threat to the health and safety of others if not vaccinated; and

(2)  Districts must engage employees with qualified disabilities or a sincerely held religious beliefs[3] in a good faith accommodations process to determine whether they can be accommodated in such a way that will not pose a direct threat to the health and safety of others or an undue hardship on the district.

Is It Permissible for School and Community College Districts to Require that Employees be Vaccinated for COVID-19?

Under the California Occupational Safety and Health Act, districts must provide their employees a healthy and safe workplace. To comply with this requirement, districts likely possess authority to establish legitimate health and safety standards, policies, and requirements.

However, the authority to require vaccinations is limited, even where a district’s actions are legitimately related to protecting the health and safety of its workplace. Federal and state laws, including the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Fair Employment and Housing Act (“FEHA”)[4], require that mandatory vaccinations address the following:

(1)  Be job-related and consistent with the district’s business necessity;

(2)    Extend protections to employees who, because of a disability or religious belief, are unable or unwilling to be vaccinated; and

(3)    Provide employees an accommodations process to determine whether they can perform their essential job functions in a way that does not pose a threat to the health and safety of the district’s workplace or impose an undue hardship on the district and its operations.

EEOC Guidance on the Permissibility of Requiring Employees to Receive Vaccinations

To date, the Equal Employment Opportunity Commission (“EEOC”), which enforces both the ADA and Title VII, has not specifically answered the question concerning the permissibility of requiring COVID-19 vaccinations. However, the EEOC has provided a framework by which to analyze the question.

That EEOC framework provides that employers may not “compel all of [their] employees to take the vaccine regardless of their medical conditions or their religious beliefs during a pandemic.”[5] This implies that districts possess authority to require vaccination for employees who do not have a qualifying disability or a sincerely held religious belief to the extent it is job-related and consistent with business necessity, as further discussed below.

Job-Relatedness and Consistency with Business Necessity

As a threshold matter, a district may not require vaccinations unless doing so is “job-related and consistent with business necessity.”[6] In order to satisfy this standard, a district must establish that it has a reasonable belief, based on objective evidence, that an employee will pose a “direct threat” to the health and safety of the workplace absent such a vaccination.

In the present public health emergency, the EEOC concluded that COVID-19 presents a significant risk of substantial harm to the health and safety of the workplace and that COVID-19 satisfies the direct threat standard under the ADA.[7] Schools likely may rely on such guidance in order to require vaccination for COVID-19 because of the potential threat that employees pose to the workplace if not vaccinated.

While the EEOC guidance suggests that districts seemingly possess authority to require vaccinations for their employees, the EEOC also limits the scope of such authority.  The EEOC recognizes that employees with qualifying disabilities under the ADA and employees with sincerely held religious beliefs under Title VII are entitled to certain statutory protections.[8] These protections entitle qualified employees to an accommodations process under which the district must determine whether there is a reasonable accommodation that will allow the employees to continue to perform their essential job functions despite their inability or unwillingness to vaccinate.

Which Employees May be Entitled to an Accommodations Exempting Them from the Vaccination Requirements?

EEOC guidance provides that, under the ADA, an employer must provide a “reasonable accommodation”[9] to employees with qualified disabilities that prevents them from safely receiving a vaccine.[10] With respect to Title VII, the EEOC provides that an employer must provide a reasonable accommodation to employees who sincerely hold religious beliefs that preclude them from being vaccinated.[11]

However, the EEOC also provides that a district is not required to provide an accommodation if doing so would compromise the health and safety of the district’s workplace or if the accommodation would present an “undue hardship” to the district.[12] To the extent that an unvaccinated employee is not able to perform work remotely or outside of regular working hours, a district may reasonably determine that such an employee poses a direct threat to the health and safety of the workplace, and is therefore unqualified for a workplace accommodation under the ADA [13], Title VII and the FEHA.[14] However, the district must still make an individualized assessment as to the cost and difficulty of providing the employee an accommodation outside of the workplace in order to determine whether such accommodation would impose an undue hardship on the district.[15]

Should a district receive a request for a medical accommodation under the ADA or religious accommodation under Title VII, the district should, as a matter of policy, require that the employee produce supporting information substantiating the employee’s qualifying disability or sincerely held religious belief and that such disability or religious belief precludes their vaccination.[16] If the employee does not cooperate with a district’s reasonable request for such supporting information, the district may deny the employee’s request.

Individualized Assessment for Reasonable Accommodations

If a district determines that an employee qualifies for protection under either the ADA or Title VII, the district must analyze potential accommodations, taking into account the nature of the employee’s disability or religiosity, the health and safety threat posed by COVID-19, the conditions of the employee’s job, and the district’s budgetary and operational circumstances.

In the case of an employee who cannot be vaccinated because of a qualifying disability or sincerely held religious belief, a district should consider accommodations that will allow the unvaccinated employee to perform their essential job functions and will impose neither:

(1)   A direct threat to the health and safety of the district’s workplace and employees; nor

(2)   An undue hardship on the district.

Given these significant limitations, a district should, at a minimum, consider the following accommodations:

(1)  Providing the employee the opportunity to telework from a remote location other than an district worksite or facility; and

(2)  Providing the employee a modified work schedule that would permit the employee to work during hours when there are no other unvaccinated employees in the district worksite or facility[17].

These accommodations would protect both the employee from the risk of infection as well as other employees, students, parents and other members of the district community who may be exposed to the virus.

Other accommodations, such as requiring the use of personal protective equipment (“PPE”) and implementing increased social distancing measures, may not remove the direct threat posed by an unvaccinated employee and are likely not reasonable.

Conclusion Regarding Schools’ Authority to Require COVID-19 Vaccinations under the ADA and Title VII

While the EEOC states that employers covered by the ADA and Title VII may not “compel all of [their] employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic”[18], given the direct threat of COVID-19 to the health and safety of employees, districts seemingly possess sufficient authority to require COVID-19 vaccinations for all employees who do not have a qualifying disability under the ADA or a sincerely held religious belief under Title VII and who report to work at school worksites and facilities.

What are District Bargaining Obligations Should They Wish to Require COVID-19 Vaccinations?

In addition to the substantive limitations under the ADA, Title VII, and the FEHA, school and community college districts that want to require that employees be vaccinated must also navigate the bargaining obligations set forth under the Education Employment Relations Act (“EERA”).[19] To date, the Public Employment Relations Board (“PERB”), which enforces the EERA, has not issued guidance or a decision concerning bargaining obligations related to an agency’s decision requiring a COVID-19 vaccination of its represented employees.

Under the EERA, districts must provide employee organizations notice and an opportunity to bargain any decision that directly relates to a matter within the scope of representation, and must do so before making such a decision.  PERB case law interpreting the EERA provides districts a limited emergency exception to the statutory bargaining obligations. The exception permits agencies, in certain circumstances requiring immediate administrative action, to make a decision that affects a matter within the scope of representation before providing employee organizations notice of the decision or an opportunity to bargain the decision.  However, the exception is very narrow and may only be used where the district can “establish a compelling operational/business necessity as justification for acting unilaterally before completing its bargaining obligations. The employer must demonstrate ‘an actual financial emergency which leaves no real alternative to the action taken and allows no time for meaningful negotiations before taking action.’”[20]  Where the emergency exception is properly applied, agencies must still bargain the underlying decision, but may do so after the decision is made.

In the absence of PERB guidance or a decisional law to the contrary, it is likely that mandatory vaccinations for COVID-19 are within the scope of representation and that districts must bargain a decision to require that employees be vaccinated for COVID-19 before implementing such a decision. However, it is possible that PERB could conclude that vaccinations are either a necessity for some or all of an agency’s employees and outside the scope of representation and therefore not subject to bargaining or that a decision requiring vaccinations is a legitimate emergency and that an agency may bargain the decision requiring vaccinations after adopting and implementing the decision.

However, because the law concerning this issue is unsettled, the safest course of action is for districts to bargain over the decision to require vaccinations. As such, districts that are interested in requiring vaccinations should reach out to the district’s labor organizations to begin the negotiations process as soon as possible, even though vaccines are not likely to be widely available for all employees until the spring.  We recommend speaking with counsel about whether any exceptions to bargaining obligations may be applicable.

Conclusion

Until the federal and state agencies responsible for enforcing the statutory schemes implicated by the question of mandatory vaccinations issue guidance directly address this question, Liebert Cassidy Whitmore advises districts that are interested in requiring the COVID-19 vaccination for their employees to undertake the following actions:

(1) Limit the scope or applicability of such decision to employees who report to district campuses or facilities and who would pose a direct threat to the health and safety of others if not vaccinated (i.e., exclude employees who exclusively telework);

(2) Offer a good faith interactive process to any employees who, because of qualified disabilities under either the ADA or the FEHA, cannot receive a vaccination;

(3) Offer a good faith interactive process to any employees who, because of an established sincerely held religious belief, under either Title VII or the FEHA are not willing to receive a vaccination;

(4) Provide information to all employees who are subject to the vaccination requirement concerning the benefits of the vaccine; and

(5) Notify employee organizations and engage in negotiations or contact labor counsel to discuss bargaining obligations and any possible exceptions from such obligations as soon as possible.

Liebert Cassidy Whitmore attorneys are available to assist schools that have any questions about this guidance.