Local government leaders have seemingly moved from one difficult, frustrating, and stressful stage of the COVID-19 pandemic to the next. As mandatory vaccinations and their range of challenges continue, Charles Thompson Jr. of the International Municipal Lawyers Association helped make sense of some of these legal issues during an on-demand session at the 2021 ICMA Annual Conference.
What is your legal authority?
“Anything that a local government does, you have to find authority either in your state constitution, state law, city charter, or some other enabling authority. The federal government does not have any authority to empower a local government,” Thompson said.
What has the Supreme Court said about mandatory vaccines?
Thompson said the only case to date with jurisprudence was in 1905 with Jacobson v. Massachusetts. While the case upheld authority of states to enforce vaccination, it did not directly address religious objections, and was decided before Title VII or the Americans with Disabilities (ADA) Act were passed.
Justice Gorsuch is quoted by Thompson, saying “Why have some mistaken this court's modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic?” Though Thompson expects Justice Gorsuch would most likely support a vaccine mandate if it allowed for religious exemptions.
In regards to the ADA, Thompson said if the requirement of the COVID-19 vaccine is a necessary safety standard for all employees, then if a person with a disability cannot get a vaccine you need to do an individual direct threat analysis.
With Title VII and religious accommodations, Thompson said religious belief is generally broadly defined, and employers should assume employees' requests for religious accommodation is based on a sincerely held belief, practice, or observance.
Does Full FDA Authorization Change Anything?
“Practically speaking, full authorization will make it easier to implement mandates. There will likely be less pushback, but we expect some based on everything we've been reading,” Thompson said.
Thompson said unionized employees will depend on specific contractual provisions and state law. Questions to consider are:
- Does your collective bargaining agreement require compliance with public health orders?
- How will you discipline violations?
Thompson reminded the audience that everything should be taken as generalities, intended as a starting point for leaders to better understand a complex and fluid situation.
He stressed that individual local governments will have unique situations depending on state law, collective bargaining agreements, etc. “You should discuss with your city, county, or special district lawyer what the specifics of your policy or program are going to be,” he said.