We have had many employees contacting our office with concerns about their employer implementing vaccine mandates.

The Public Employment Relations Board (“PERB” or “Board”) has held that it is a management right to make the decision to implement a vaccine mandate.  (Regents of the University of California (2021) PERB Decision No. 2783-H)  However, the Board also concluded that an employer is required to negotiate the effects of the decision before implementation.  So, if you are in a union workplace the union can negotiate over the effects of the mandate but ultimately cannot stop your employer from moving forwards with a vaccine mandate.  Our office is currently negotiating over the impacts of vaccine mandates and can assist your union in negotiations if needed.

We have also been asked if under federal law vaccine mandates are legal. In 1905, the Supreme Court upheld a mandate that all citizens be vaccinated for smallpox. (Jacobson v. Commonwealth of Massachusetts (1905) 197 U.S. 11.)  The Court’s ruling relied on the principles that an individual’s right to liberty and bodily autonomy is not absolute, and that states have the authority to take actions necessary to protect the health and wellbeing of their citizens.  Similarly, in 1922, the Supreme court held that mandating vaccination of school children, a specific group of people, did not violate individuals’ Fourteenth Amendment rights to due process or equal protection.  (Zucht v. King (1922) 260 U.S. 174.) This argument could transfer to public sector workers, especially those who have direct contact with the public.

California courts have already followed Jacobson and Zucht, ruling that when it comes to mandatory vaccinations, finding the need for public safety outweighs individuals’ rights to privacy or bodily autonomy. (Brown v. Smith (2018) 24 Cal.App.5th 1135 and Love v. State Dept. of Education (2018) 29 Cal.App.5th 980 – holdings that schools can mandate children be vaccinated as a condition of attendance.) California courts have also repeatedly ruled that employers can mandate flu vaccines where the mandate because it was “narrowly tailored” to reduce transmission of the flu. In December 2020, the Alameda County Superior Court upheld the University of California’s flu vaccine mandate because it was “narrowly tailored” to reduce transmission of the flu. The court reiterated that there was no case in which a court struck down a mandatory vaccine imposed as a condition of attending school or college, as a condition of access to property for the purpose of employment, or as violating bodily autonomy.

Under California law the only exemptions to vaccine mandates that must be offered are where the person requesting an exemption has a sincerely held religious belief or a medical reason not to be vaccinated.  Employers are going to be asking for verification and information to confirm that an employee really does qualify for an exemption.  If you are planning to request an exception we can review your request for you before you turn it in.

On August 12, 2021, the Supreme court indicated that they are unlikely to stop vaccine mandates when Justice Barrett declined to review a Seventh Circuit decision relying on Jacobson v. Commonwealth of Massachusetts, which upheld Indiana State University’s COVID-19 vaccine mandate.

In Bridges v. Houston Methodist Hospital, a Texas case, Houston Methodist Hospital’s vaccinated mandate and subsequent termination of employees wo did not comply was upheld. (Bridges v. Houston Methodist Hospital S.D. Tex., June 12, 2021, No. CV H-21-1774, 2021 WL 2399994) The court cited Jacobson as proof that an employer can mandate vaccines.

If you have any questions about your specific situation, please do not hesitate to reach out to us for a consultation by calling us at (310) 649-5300 or going to our website.