Mandatory or Voluntary; Choice vs. Compulsion

Can firefighters be compelled to get the COVID-19 vaccine against their will?
Bobby Halton

The issue of our personal freedoms and our careers is always a tough place to find clear-cut answers. A crossroads could be coming for some with regard to the COVID-19 vaccines. The current pandemic is now entering a new phase where personal convictions and job requirements could face off. Multiple vaccines are here, which is not in and of itself the answer, but can help move the country toward herd immunity. The question now is whether firefighters can be compelled to take it against their will.

There are many ways this could go and, as I write this editorial, no mandatory orders have been given anywhere. The hope is that none will be. But how would a department or a firefighter resolve the issue if it comes up? Historically, we have resolved these issues through the labor-management process. In the event of a jurisdiction mandating the vaccine, there will naturally be some exceptions.

Vaccines are not without controversies. The swine flu vaccination program in 1976 led to partial paralysis in 532 people and 32 deaths. In 1955, officially 200 cases of polio were caused by the polio vaccination. In Kyoto, Japan, in 1948, a toxic vaccine batch was responsible for illness in more than 600 infants and 68 deaths. So, skepticism is not unwarranted.

There has also been immeasurable good from vaccines. Smallpox remains to this day one of humanity’s greatest killers. Had it not been for the efforts of Lady Mary Wortley Montagu, its numbers would be higher still.

In 1716, while visiting the Ottoman Empire, Lady Mary became acquainted with the practice of mixing the pus from a smallpox survivor with the blood from a scratch on the arm of a healthy person. At the time, the practice was called variolation. Lady Mary, a smallpox survivor herself, did it to her children and her friends’ children. Of course, she was not the first to do so, but she was at the time the most high profile. She became an outspoken proponent of the practice and gained considerable attention, both good and bad. She was condemned by the elites, the academics, and the usual suspects. Nonetheless, others tried, most notably Edward Jenner, who in 1796 invented the vaccine.

What we know about the vaccination efforts so far is that the Equal Employment Opportunity Commission (EEOC) has identified COVID-19 as a direct threat, so can it be mandatory?

According to labor attorney Elaine Turner, where we stand now is this: “On December 16, 2020, the EEOC announced its position relating to employer mandated COVID-19 vaccines. Initially, the EEOC reaffirmed that federal ‘EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.’ It is clear from the EEOC announcement that, under specific circumstances, employers can mandate a COVID-19 vaccine but may not mandate that all employees take the vaccine regardless of employee medical conditions and religious observances. Courts have reviewed similar issues related to mandatory vaccine policies for the flu and for other diseases as well. Under federal law, courts have found that employees were not exempt from mandatory vaccine policies when their medical condition did not rise to the level of a disability under the ADA or their anti-vaccine philosophy was not a sincerely held religious belief. Courts determining federal law claims have also not exempted employees from mandatory vaccine policies when to do so would impose an undue hardship on employers such as healthcare providers whose patients would be placed at risk if exposed to employees with a contagious disease. Significantly, the EEOC reminded employers that employees who cannot be vaccinated for COVID-19 because of a disability or sincerely held religious belief cannot be automatically terminated from employment. The ADA and Title VII require that employers engage in an interactive process to determine whether there is a reasonable accommodation available that allows the unvaccinated employee to continue in her or his employment.

“In its December 16, 2020 statement, the EEOC also announced its determination that the administration of a vaccination is not a medical examination under the ADA. However, ‘the pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.’ Thus, if an employer is administering the vaccine or has retained a third party to do so, the employer must first establish that the pre-screening questions that are asked of employees are ‘job-related and consistent with business necessity.’ In other words, the employer must have a reasonable belief that employees who do not answer the questions and, thus, are not vaccinated ‘will pose a direct threat to the health or safety of her or himself or others.’ This determination need not be made by the employer if the vaccine is purely voluntary.

“Employers who have not already done so should immediately begin evaluating whether their business is legitimately in need of a mandatory COVID-19 vaccine policy or should merely encourage employees to take the vaccine. Under federal law, employers must have a reasonable belief that a mandatory vaccine policy is required because an employee’s ability to perform essential job functions will be impaired by COVID-19 or an employee will pose a direct threat due to COVID-19. This is likely an easy determination for healthcare providers but not so easy for other kinds of employers who are outside the healthcare industry.”

The fire service approach to this new Covid RNA technology vaccine will likely mirror the communities we serve. This new RNA technology may have some wonderful impacts in other aspects of medicine. It may have some unintended consequences. We assume most firefighters will anxiously take the vaccine and, with time, the exposure risks will decrease, so the issue of mandating may resolve itself.

Bobby Halton

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