It’s a brief chat as workers call labor attorney Jon Meyer and ask if their employer can request a Covid-19 vaccination and fire them if they refuse. With very few exceptions, the answer is yes – regardless of the arguments that it is illegal to do so until the vaccines get final approval from the Food and Drug Administration.
“Whether the FDA approval is urgent or final is completely irrelevant,” said Meyer from Backus, Meyer, & Branch in Manchester. “The fact that you have a right not to take a vaccine would not be a reason why a private employer could not fire you.”
More New Hampshire employers are considering prescribing Covid-19 vaccines as immunizations are delayed and the Delta variant is driving up Covid cases, hospital admissions and deaths. Dartmouth-Hitchcock announced this week that it will require vaccinations for its 13,000 employees by the end of September. The New Hampshire Hospital Association has urged all health care providers to do the same. Sheehan Phinney’s employment lawyer Jim Reidy, who works with employers, heard from four clients asking about the legality of clients on Thursday alone.
There are few restrictions on employers who want to prescribe Covid-19 vaccinations.
Most common are requirements that employers make “reasonable” provisions for certain medical conditions and “honest” religious beliefs. For the latter, it’s not enough to say that your faith relies on the Holy Spirit for healing, or to quote a scripture that suggests the vaccine is poison, something that Pastori Krans employment lawyer Beth Deragon saw.
Reidy and Deragon said that in order to qualify for a religious exception, the person must be a member of the community and cite an opposition that is part of the church’s teaching. And those asking for religious shelter must sign an affidavit stating that their claims are true.
There is an additional restriction in New Hampshire. New federal law prohibits state, county, or local governments from requiring vaccination of employees except in state hospitals, county nursing homes, or other state medical facilities.
The State Department of Health and Human Services, which operates the State Hospital and Glencliff Home for the Elderly, does not currently prescribe vaccines for its healthcare workers. When asked if that would change, spokeswoman Laura Montenegro said in an email: “We are checking our current vaccination levels in our facilities and this information will influence our decision-making.”
A third exception has been requested since Covid-19.
The “Emergency Clearance” issued for the Pfizer, Moderna, and Johnson & Johnson vaccines requires that recipients be informed that they “have a right to accept or refuse the vaccine”. Federal agencies have interpreted this to mean that employees can refuse the vaccine as it will not be forced on them but can still be fired if they refuse.
The US Department of Justice released an 18-page letter last month detailing the history of the emergency use authorization (first proposed by President George W. Bush) and analyzing the intention of Congress to grant it as part of a package called Project BioShield say goodbye.
The ministry concluded that “accept or reject” language is a duty to inform recipients of their rights, not a prohibition on dismissing them if they refuse and are not eligible for an exception.
The U.S. Department of Justice letter cites a 2021 court ruling in which a judge came to the same conclusion that deciding on a vaccine mandate is not a coercion, as it offers another option to employees who refuse a vaccine. “She just has to work somewhere else,” wrote the judge.
Reidy said judges who presided over other challenges related to vaccine mandates had made similar decisions.
Like Reidy, Deragon heard this objection.
“It seems to me that there is a group of people who say that this emergency clearance means you cannot prescribe the vaccine,” Deragon said. “I don’t quite see it when you consider the federal guidelines on vaccination.” These guidelines include the U.S. Equal Opportunities Commission reaffirming the right to prescribe a Covid-19 vaccine.
Meyer formulated his legal analysis as follows: “These are arguments that sound good on social media,” he said, but legally unfounded.
The lawyers said the challenge for employers is not to give a mandate but to enforce it legally.
“When employers say everyone needs to be vaccinated without providing these shelters, that’s a big problem,” Deragon said.
Meyer said employers with unionized workers may not be able to mandate vaccination without making them part of the contract negotiations. And Reidy said employers must treat all employees equally and, for example, not bend the rules for valuable employees who say they will stay if they can be exempted from the vaccination mandate.