Commentary, Health & Safety, Legal

Mandatory COVID-19 Vaccinations for Firefighters?

John K. Murphy

As we are aware, the COVID-19 pandemic infections are creating staggering numbers of infected, hospitalized, and dying Americans. This pandemic is not only affecting the United States but the world as well.

Fire, EMS services, and hospitals have been overwhelmed with the number of cases infecting and killing staff. The pandemic is also overwhelming these same services with increased transports and hospitalizations.

Right now the common prevention method is masks, social distancing a,nd handwashing. In tight spaces like fire stations, hospitals and even at home, this social distancing part is not always possible although handwashing and masks are possible.

Fortunately, science and technology are hard at work creating vaccine(s) to curtail this worldwide threat and new COVID-19 vaccines are coming to market within a few months and hopefully slow down or stop the pandemic. A safe and effective vaccine could end the coronavirus pandemic, but for it to succeed, the U.S. and the world will need a critical mass of people to become vaccinated.

Until then masks, social distancing and handwashing are the cornerstones of infection control, the same thing the fire service has been doing for many years with patient care procedures.

Recent national polls suggest that the U.S. is far from ready as many surveys have found that only two thirds (2/3) of adults say they would get the vaccine (1).  While that might protect most people who get vaccinated, it may be insufficient to reach a critical mass and stop the virus’s spread.

In order to stop the spread of this virus, the most intrusive policy would involve government mandating vaccination for all Americans, with the exception of those with a medical, personal or a religious exemption.

Americans are often surprised to learn that states would likely have the legal right to enforce such a rule. Would this rule apply to you and your department?

Americans have been inoculated or vaccinated for infection control or prevention of identified diseases since birth. As a child you received Measles, Mumps, Rubella (MMR), Polio, and TDaP (Tetanus, Diphtheria and Pertussis) immunizations to name a few. If travelling internationally, there are traveler mandated vaccines you must obtain before entering some countries depending on the types of infections in the travel area – Polio, Hepatitis A, Typhoid, Yellow Fever, Dengue just to mention a few. (2)

All 50 states currently have some type of compulsory vaccination laws covering K-12 schoolchildren, and many states have compulsory vaccination laws covering college students as well. These laws typically allow for some type of medical exemption to include religious or personal exemptions. Some states may also have mandatory vaccination laws covering employees in nursing homes and health care facilities.

So the question: Can you mandate an inoculation or immunization for your firefighters?

In the 1905 landmark case Jacobson v. Massachusetts (197 U.S. 11 (1905) the United States Supreme Court upheld the constitutionality of a state criminal law that required all adult inhabitants of Cambridge (MA) to get a smallpox vaccine or be fined. The Supreme Court explained that an individual’s liberty rights under the U.S. Constitution are not absolute and the mandatory vaccination law was necessary to promote public health and safety. While Jacobson v. Massachusetts is over 100 years old, courts continue to rely on the reasoning of the case.

State governments still occasionally enact broad compulsory vaccination policies. In 2019, in the midst of a measles outbreak, New York City mandated that anyone over six months of age who lived, went to school or worked in several ZIP codes within the city had to be vaccinated against measles or be subject to a fine. (3&4) Similar action occurred in California after a measles outbreak (see Brown v. Smith 24 Cal.App.5th 1135 (2018))

Considerations and personal constitutional protections – The 14th Amendment asserts that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States or deprive any person of life, liberty, or property without due process of the law

The Supreme Court recognizes a 14th-Amendment guaranty of substantive due process that protects US residents against arbitrary legislative actions; this constitutional guarantee requires that legislation not be unreasonable, arbitrary, or capricious and that it have a substantial relation to the legislative objective. However, are these protections waived during a declared public health emergency? Another thought and one of the most controversial issues surrounding compulsory vaccination laws is the religious or philosophical objections, which some states have eliminated in recent years.

Courts have explained that while compulsory vaccination laws may burden religious practices, religious exemptions are not constitutionally required under the First Amendment’s free exercise clause since mandatory vaccination does not single out religion and is not motivated by a desire to interfere with religion.

Requiring people to be vaccinated against the SARS-CoV-2 coronavirus (C-19) could similarly be justified by government’s need to promote public health and safety and under the law, there is an obligation of an employer to protect its employees and create a safety work environment.

Yet in the United States today, where even mask mandates are controversial, it is unlikely that many states will enact a compulsory vaccination policy for everyone.

If mandating a vaccination for your employees under a public health emergency, employers also need to weigh any liability issues a vaccination requirement might raise. “It’s a treacherous area for employers,” related to a potential liability that arises from requiring a vaccine where the vaccine goes sideways and creates harm to the employee. There will probably be a workers compensation claim against the employer. And, of course, some kind of claim against the vaccine manufacturer. There’s a lot of weighing that goes on here.” (5&6)

A less intrusive tactic would be for state governments to require COVID-19 vaccinations for only certain segments of the population or members of your public safety organization.

As firefighters, we are exposed to many diseases and there are a number of vaccines to prevent infections or illnesses. We are offered Influenza, Hepatitis B, TDAP (tetanus, diphtheria and pertussis), Hepatitis A, Shingles, and Pneumococcal Pneumonia (over a certain age) and soon to be Covid 19.

If states required this type of targeted mandatory COVID-19 vaccination, they could cover those most at risk and those most likely to be in contact with others in ways that could stem the virus’s spread.

What can employers require?

Private employers have significant flexibility for requiring vaccination. Yet few businesses outside of health care facilities have done so, partly out of fear that employees would consider these policies to be unacceptable invasions of their personal lives. There is a risk in a unionized workplace that a mandatory vaccination policy could be struck down if it violates a collective bargaining agreement. However, unlike government-mandated policies, these would not be subject to constitutional restrictions.

Most employment in the US is at-will employment and immunizations could be a condition of employment in some sectors

Employers may also be concerned that if policies do not include significant religious exemptions, workers could sue, claiming religious discrimination although there is a chance that these exemptions may be respected but enforced. However, it is unlikely that federal law would require employers to accommodate employees requesting a religious exemption to a COVID-19 vaccine. Under Title VII of the 1964 Civil Rights Act, the federal law prohibiting religious discrimination in the workplace, employers are not required to accommodate religious employees if doing so involves more than a de-minimus, or minimal cost.

Certainly, in the midst of one of the worst public health and financial crises in recent history, there is a significant cost to having an un-immunized workforce.

We can encourage our firefighters to get vaccinated through education campaigns led by trusted fire department leaders, community leaders, trusted scientists, or religious leaders.

Thoughts:

Have a Policy on the administration of Covid 19 Immunizations. You can add it into your existing Covid 19 Response Policy. Depending on your agency, this may be a subject of bargaining. Have the early talk with your union leadership. For non-union or volunteer fire departments, start the discussion with the membership about the Covid 19 immunizations.

There are some guidelines already used as guidelines or adopted by Fire Departments created by the NFPA. For example, NFPA 1581 – Standard on Fire Department Infection Control Program which provides guidance on infection control for all departments (7).

Another reference is NFPA 1582 (2018) in Chapter 7 and Annex A A.6.1.2 Physical examination should include immunizations as recommended. Although directed at candidate firefighters, I would use these recommended immunizations for incumbent firefighters as well.

Look at your local Public Health Authority for some directions and recommendations. They are working with the CDC and WHO and other national and international agencies on the latest information related to Covid 19 and immunization updates.

Work with your attorneys to create a Policy related to mandatory or voluntary Covid 19 immunizations for your agency. There are several resources available at IAFC, IAFF, Lexipol and others. Recognize religious or medical exemptions. Pre-planning for this eventually is proactive leadership.

Offer the vaccine when available for both volunteer and career members. Public safety agencies and employers should make vaccines free and available at convenient locations at the stations or at the local medical clinics. If there are any incidental expenses or this immunization make them an employer’s cost or as a part the medical insurance benefit for your firefighters.

Consider your approach to this issue: Will it be a requirement of the job? Even in a volunteer or career department your fighters may be at-will employee will your program be compulsory? If in a Union environment this may be a possible subject of bargaining

Finally, this is a “depends” answer. Other than the cases noted above, each challenge to mandating this immunization will be unique. Let’s be proactive on this issue and plan for the vaccination.

Endnotes

https://www.usatoday.com/story/news/politics/2020/09/04/covid-19-two-thirds-us-wont-take-vaccine-right-away-poll-shows/5696982002/

https://wwwnc.cdc.gov/travel

https://www.nvic.org/vaccine-laws/state-vaccine-requirements/newyork/ny-bill-turned-into-law-one-day-no-public-hearings.aspx

New England Journal of Medicine https://www.nejm.org/doi/full/10.1056/NEJMp1905941

https://www.aarp.org/work/working-at-50-plus/info-2020/employer-require-covid-vaccine.html

https://www.mic.com/p/mandatory-covid-19-vaccinations-heres-what-states-employers-can-legally-require-29575218

Podcast – https://www.fireengineering.com/2020/11/12/496098/podcast-fire-service-court-nov-2020/?topic=333350

This commentary reflects the opinion of the author and does not necessarily reflect the opinions of Fire Engineering. It has not undergone Fire Engineering‘s peer-review process.