Interview: How Vaccine And Mask Mandates Might Affect Employees And Employers

Now that the Food and Drug Administration has given full approval to Pfizer’s COVID-19 vaccine, some employers are turning to vaccine requirements for their employees.

Last month, the Pentagon announced that military service members should expect to get their COVID-19 vaccines as soon as possible — however, the military isn’t the only employer looking to inoculate their workforce quickly.

California is the first in the nation to declare vaccine mandates for health care workers. The only exceptions are either religious beliefs or a qualified medical condition.

People who are looking to skip vaccinations may be wondering if their employers can legally mandate vaccinations. Employment law expert and lawyer Jennifer Shaw says employers have the legal footing to do so.

“Absolutely [they can legally mandate vaccinations]. This has been the case since the very beginning,” said Shaw on CapRadio’s Insight. “There are different perspectives and different viewpoints.”

She explained that “legally, the law is clear” for both the federal and state government regarding vaccine mandates, as long as there is reasonable accommodation provided to individuals with a disability or medical condition that could prevent them from being vaccinated.

Shaw sat down with CapRadio’s Insight Host Vicki Gonzalez and explained the legality of vaccine mandates and how your employers may soon be asking for proof of vaccination too.

This interview has been edited for clarity and length.

Interview Highlights

On why employers have the legal ability to mandate COVID-19 vaccinations

Well, here’s the thing that a lot of us have sort of forgotten about — the pandemic is unprecedented. So we just haven’t seen something like this happen in over a century.

Although employers don’t necessarily have the right to impose something like the flu shot — because the threat to employee health and safety is less with the flu … than with COVID — employers have a lot more rights with COVID because of the public safety component.

Now, I recognize not everybody agrees with that, that the flu, for example, is not as lethal as COVID (Editors' note: Experts are clear that COVID-19 is deadlier than the flu), but that’s what the enforcement agencies have looked at. We’re really in this health and safety universe where the employers have to have the ability to mandate vaccinations if they want to.

On how religious exemptions to the COVID-19 vaccine works

I think the trickiest part is religious exemptions, because we all know there has been a lot out there in social media about being able to purchase an exemption.

There are churches that have granted what they consider to be a “mass exemption.” So, we have employers calling, saying, “wait a minute, what is this sincerely held religious belief? What are we looking at? How far can we push?”

I think a lot of employees and applicants are going to be surprised because even though somebody can have an anecdotal belief — for example, I might be Catholic, but I don’t have to believe everything that the pope says. I can have my own belief system. My belief has to preclude me from getting vaccinated.

That’s the part that’s really confusing people. Because a lot of the requests for exemption that are coming into my clients say things like “my religion says I have to exercise my conscience and my conscience says I shouldn’t be vaccinated because I don’t believe it’s safe and I don’t believe that the government can force me to do this.”

None of that has anything to do with a religious belief. Literally, the religious belief has to say you can’t get vaccinated … you can’t get preventative medical treatment. You have to be in a situation where you can show what’s called “conflict.” The conflict between what the employer wants to make you do or not allow you to do and your religious belief.

We have looked at this very broadly as a community since COVID came. What’s happened is people have a very loose definition of what that connection, what that conflict is. Most of them are not putting forth the facts to actually substantiate [that] they’re entitled to an exemption.

On possible lawsuits employers and employees may face over the mandates

When you’re talking about a medical exemption or a religious exemption, they’re all fact-specific, but it’s all going to depend on what the employee said, what processes the employer has in place.

So I do think that there’ll be litigation. The other thing to really understand, from a practical perspective, is that we’re in a labor shortage. Most of my clients can’t find people to work for them. So there’s a balance that employers have to look at in terms of … “if I’m going to lose half of my labor force, it’s probably not worth it. So what else can I do?”

And what we’re seeing is there’s a group of employers who are saying, “all right, I’m not going to mandate vaccinations, I’m going to mandate biweekly testing. I’m also going to give everybody respirators to work …”

So when you can afford to lose your employees, another option is to say “all right, if you’re vaccinated, you don’t have to wear a respirator, you don’t have to get tested. But if you’re not vaccinated, I’m going to [ask you to wear protective gear].”

Now here’s the really interesting thing — what if somebody says, "my religion prevents me from being vaccinated and my religion prevents me from being tested?” Well, at that point, there aren’t a lot of accommodations that the employer can provide if we assume the employee needs to be working on site. … If you have people coming on-site who say, “I can’t get vaccinated and I can’t get tested.” There’s not a lot you can do for those individuals.

On if Gov. Gavin Newsom is recalled and if the incoming governor can repeal mask mandates statewide

The governor has a lot of leeway in terms of implementing executive orders, just like the president does … We could have a very, very interesting, I think, constitutional discussion about how far that power actually goes. How far can the governor, an executive, actually go into making law, making rules?

But certainly, with respect to safety issues, once there's a declaration of emergency, as there has been since COVID started, we're in a situation where they have a lot of leeway. So if we get a governor from the Republican party, things may change.

Now what is interesting is there are laws on the books that the Legislature would have to change. For example, we have reporting requirements — if somebody is COVID-19 positive, there are workers' compensation protections. There's Cal/OSHA emergency temporary standards that are not implemented by the governor. Those are implemented by the agency pursuant to a formal rulemaking process.

So some of these rules are not going to be as easily disposed of as issuing the new executive order.

On how Shaw advises employees who may not want to get tested for COVID-19 or vaccinated

I have a lot of empathy for everybody in this situation. Clearly, from the employer's perspective, they have very rigid health and safety requirements they have to meet. They also frequently care about their employees, and they want to make sure they’re healthy.

On the other hand, I understand the arguments that people are having about their freedoms and their independence. But to me, what I try to explain is — look, there are rules. We all have to follow things like wearing a seatbelt, not drinking while driving …

I think the problem with the term “mandatory vaccination” is nobody is going around and grabbing people and making them get vaccinated. There is a —  if you want to work or if you want to go to a restaurant in Los Angeles or San Francisco or if you want to ride on an airplane, there are certain things you have to do.

I think it’s important for people to really look at these vaccination requirements through a lens of goodwill and understanding of what’s going on.

I don’t advocate that people are fired because they can’t be vaccinated. If there’s any way for the employer to accommodate that individual … I think that’s the right thing to do. You worked hard to get that person in the door. You need the skills that person has. Let’s figure out what we can do.

But there is a place where when somebody says, “I won’t get vaccinated, I don’t believe in COVID-19, I’m not getting tested.” That’s fine, but you may not be able to come to work. You may not be able to shop. You may not be able to go to a restaurant because we’re in a public health crisis, and the rules apply a lot differently in these kinds of circumstances.