Question: Can an employer mandate/require an officer to get the COVID-19 vaccine to continue working? Do you see guilds/unions challenging this and how do you see courts ruling?
Answer: There’s not a lot of law on whether a mandatory vaccine requirement would be a negotiable topic. The NLRB has some cases that suggest it is negotiable, but there’s a case out of California’s PERB that suggests it isn’t. We’d expect to see a lot of unions demanding to negotiate over the issue, something that may lead to a ton of litigation.
Assuming the bargaining issue is put to rest, there are a lot of cases holding that with one exception, an employer can mandate vaccines. The exception would be if the employee is in a protected class where taking a vaccine would violate their rights. Most such cases involve employees claiming religious beliefs that militate against vaccines. Assuming the employee can cross the hurdle of proving they have bona fide religious beliefs inconsistent with vaccines, the employer would then have to reasonably accommodate the employee unless to do so would cause the employer undue hardship. The accommodation could be in a non-line position, even if the employee loses premium pay and overtime in the process.
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