I don’t know about you, but with all the litigation, I have been struggling to figure out what rights employees have if they don’t want to get the COVID shot. As a lawyer and former student of analytic philosophy, I’m big on putting things into categories to help understand complicated and seemingly contradictory data points. Sort of like how TV detectives use a whiteboard with pictures of persons of interest. (A more abstruse allusion for Herman Hesse fans would be the Glass Bead Game aka Magister Ludi.)

I’ve done this before in terms of the different kinds of lawsuits involving vaccine mandates: https://rickjaffeesq.com/2021/12/07/the-whirlwind-of-covid-mandates-and-mandate-litigation-continues-some-things-are-becomming-clearer-but-the-new-variant-might-further-muddy-the-waters-and-some-breaking-news/ Let me try to do the same focusing on employees.

Let’s start with the basic rule. The constitutional protections that people talk about in this area, like privacy, bodily integrity, only apply to action taken by the federal or state government. They do not apply to private employers. It is not (federally) unconstitutional for a private employer to violate an employee’s privacy rights. Again, the simple reason is that the Constitution only applies to federal and state action. Indeed, prior to the passage of the 14th Amendment after the civil war, the constitutional protections afforded by the amendments only applied against federal government action. The same rule applies to constitutional rights protecting against any kind of discrimination. They only apply to federal or state action.

Where we are right now on constitutional litigation of vaccine mandates.

So far as I can tell, the courts have rejected a constitutional right to refuse a vaccine mandate based on privacy, religious beliefs or discrimination. At least twice in the past couple of months, the Supreme’s have declined to take these cases upon its shadow docket. But diving deeper. The three hard-right justices (Gorsuch, Alito, and Thomas) would have heard these cases. Further, based on Gorsuch’s tendency to make mechanical, doctrinal decisions without in-depth analysis, it seems clear to me that he and his two confrers would likely reverse the appellate court decisions against the constitutional right. The three liberal justices would certainly affirm the lower court’s decision on the merits. They (liberals) might have the Chief with them based on the first South Pentecostal decision which upheld restrictions on religious services which restrictions were different from restrictions on hardware stores. That leaves Barrett and the beer-loving guy (and how do you not love a Supreme who is such an unabashed advocate for beer). These two seem to want to wait until there is a better record. Arguably the important point is that together (or alone) I think they could have forced the Supremes to address the issue now, but they didn’t. That suggests to me that they do not see a clear constitutional right.

BUT THAT IS NOT THE END OF THE STORY, AND IT MIGHT BE THE LEAST INTERESTING PART OF IT

That is because we do not live by the Constitution alone. We have federal statutes. And in the employment arena, we have a big one which covers all employees who work in a company with over a specified number of employees. Federal statutory law provides specific statutory protection for employees who have disabilities and sincerely held religious beliefs. Those rights are enforced by the federal EEOC (Equal Employment Opportunity Commission).

Most of you have heard about medical and religious accommodations which are required if they can be made without undue hardship to the employer. Frustratingly, these issues involve technical issues which sometimes have specific answers or vague general rules and approaches for resolution of specific applications to individual situations. To help with the analysis of specific issues, the EEOC puts out technical guidance documents. The most recent version was put out last month. Some of your questions may be answered by this document. Some not. But if you have an issue with your employer’s vaccine mandate, this is surely the first document you should consult. Here it is: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

Bottom line is that employees do have some federal statutory rights if they have a medical problem or accepted medical exemption, and or if you have sincerely held religious beliefs, IF a reasonable accommodation can be made by your employer. However, my read of this document and the law is that it might be hard to challenge an employer’s decision that there is no reasonable religious accommodation that can be made. That is my takeaway from the New York State and Maine federal appellate court decisions which did not provide a religious accommodation. I don’t think the medical accommodation/disability issue has been fully litigated yet but I would expect that accommodation to provide more protection than the religious accommodation (unless the views of the three hard-right Supremes prevail, but more about that later).

The above analysis only applies if your employer has a COVID mandate in place. So, what if your employer doesn’t? Are you free to do what you want? The answer is yes unless you work for a hospital that takes medicare or other federal pay programs, or you work for a company that has a federal contract, or if you work for a company that is required to follow the OSHA law, (and that is a substantial business, i.e., over ten employees). So, practically speaking, even if your employer does not have a COVID mandate, basically under federal law applicable to most employers, there is a federal mandate for vaccination or frequent testing (paid by the employees usually).

EXCEPT, as you all know, these three federal mandates have been the subject of many legal challenges throughout the country. Most, but not all of the challenges have been rejected by the appellate courts so far. As widely reported the Supremes will be taking up the primary challenges later this week.

These cases involve the threshold constitution issue of whether the federal government has the power to issue vaccine and/or testing mandates. The powers of the federal government are limited and all powers not expressly granted to it are reserved to the states. That’s called the 10th Amendment. Historically, vaccine mandates have been exclusively undertaken by state and local governments (other than federal employees).

On this constitutional question, I see the same three hard yes’s (the liberals will say the feds have the power). I see three hard no’s (the arch-conservatives). I see the two new right-wingers (Barret and the beer guy) making a political decision aligning themselves with their hard-right brethren. As to the chief, I think that’s a hard, hard to predict. Based on the first South Pentecostal, maybe he goes with the liberals, but that puts him in the minority. Seeing that, I can see him voting with the right-wing. His reasoning could be that if he is in the majority, he can assign the opinion to himself to try to craft a narrow decision rejecting the federal mandates. If he does that, look to Gorsuch (who I think is the Court’s best hard-right wordsmith) to write a concurring opinion joined by the rest of the majority That would eviscerate the force of Roberts’s opinion, precedent-wise, and well as further show that he has lost control of the court. And that’s a point which I think the hard right would be keen on making sort of laying down a marker about whose court it is now. I think that would be especially satisfying to Justice Thomas who has been in the Supreme’s political wilderness for his entire tenure on the court, but no longer.

The big picture: In highly politicized issues like vaccine mandates, abortion, and gun rights, I no longer think that objective legal analysis and Supreme Court norms matter. More and more, these cases seem to be political decisions. Chief Justice Roberts’s insistence that there are no Obama, Bush, or Trump supreme court justices rings more and more hollow with each decision in these areas. I don’t see a majority of the Republican-appointed judges allowing Biden to enforce a nationwide COVID federal mandate. I think it’s a Republican thing. Conversely, I see the Democratic justices lining up behind the law because of their view that it’s the job of the federal government to fix big problems which arguably require a national rather than patchwork inconsistent response. Silly them in these pandemic times.

This is ultimately a matter of politics and worldview. Elections, luck, and personal choices made by Supreme Court justices (read: the late Justice Ginsberg, and current Justice Breyer) have consequences. And the consequences of the above factors mean that the Republican worldview is what matters, and that worldview is inconsistent with the view of the liberals’ (plus perhaps the Chief’s) view of federal power; and certainly the power of a Democrat president. In the end, it might be just that simple, which would be regrettable to many regardless of party affiliation.

Rick Jaffe, Esq.