President Joe Biden recently announced new COVID-19 pandemic requirements for all federal workers. In an effort to increase vaccination rates, federal workers will be required to attest that they have been vaccinated against the coronavirus or comply with mandatory requirements involving masking, testing, and social distancing.
WIVB News 4 recently aired a report on the new vaccine requirements for federal employees. As part of their ongoing coverage of the coronavirus and vaccine debate, WIVB anchor Jacquie Walker spoke with attorney Barry N. Covert.
In their interview, Jacquie Walker asks Barry Covert to address the legality of a vaccine mandate for federal employees, the applicability of a vaccine mandate in the private sector, and the possibility of a federal vaccine mandate for all citizens of the United States.
Continuing reading for portions of the Barry Covert’s comments and click the video below to watch the full conversation.
Can the federal government require its employees to be vaccinated in this manor?
BNC: Unless there is some type of employment contract that prevents them from doing so under the contract, then generally yes, they can assert that requirement. It’s not clear though what teeth they have, if they’re stating they’re not going to fire anyone who’s not compliant with the requirement. Here, they’re going to require that if you can’t prove you’re vaccinated, you have to wear a mask and submit yourself to testing. They haven’t said yet what they are going to do if individuals who have not proven that they’re vaccinated refuse to wear a mask and/or refuse to be tested.
Can you be terminated from your job for not doing any of these things? Is that the sort of thing someone would challenge and take to court to try to keep their job?
BNC: I certainly think that individuals, or if they’re covered by any unions or any civil employment representatives, they will band together most likely and try to challenge this. I would certainly expect that. We’ve seen that locally, where Stefan Mychajliw is threating to sue over an employee who lost a week’s wages because she failed to wear a mask. So, I certainly think that on a national scale, we can certainly expect that there are going to be challenges too. But, just keep in mind, there is no criminal component. This is not a law passed by congress. This is an executive order. So, the teeth that are behind this is very unclear as to what the Biden administration can do for those individuals who refuse to prove they were vaccinated and refuse to wear masks and/or be tested on a weekly basis.
Can a private employer require you to be vaccinated in order to work there?
BNC: Generally, the answer is yes. They can require that you be vaccinated. And, if you can’t prove that you were vaccinated, as a general rule, they can then terminate you. New York State for example, is an employee-at-will state. You can quit your job for any reason, if there’s not a specific contract between you and the employer. You can quite your job or the employer can fire you, terminate your employment, as long as you’re not in one of the protected class. Whether it’s gender based or sexual orientation, one of those. As long as it’s not based on those factors, generally the employer can terminate you. So, I’m careful to hedge here because it’s state-by-state generally when it comes to employment laws by private employers. But generally, yes, employers can require that you show proof of vaccination. We’ve historically done that with other vaccines. We have clothing requirements at the office. There are general rules that are imposed by employers that can result in your termination if you fail to comply. Unless there’s a contract, such as a union contract, that requires the employer to go through a different procedure in order to terminate the employee.
If the federal government can make it mandatory for all of its employees to be vaccinated; can it require all citizens to be vaccinated?
BNC: That has never been attempted to be implemented by the federal government, that the federal government itself requires vaccinations. That’s always been school district by school district, county by county, state by state. So, I think that the federal government would have a very difficult challenge ahead of them if the federal government itself wanted to impose that requirement that all citizens be vaccinated. Because traditionally, that again, is something that is handled by states on an emergency medical basis for the states to implement. Just like we’ve seen for the last eighteen months. It has been state by state. Some states have been very vigorous in their enforcement and their rules, some have not. And traditionally, California and New York State have been very vigorous in their enforcement of emergency measures. I think that the federal government would have a very difficult task ahead to to require non-employees to be vaccinated, just the general public. It is not clear to me that the constitution gives the federal government that power at all and that would be deemed overreach. But, I’m just predicting at that point what the courts will be saying. I would expect that there would be significant litigation if the federal government tried to impose those types of requirements on non-employees of the federal government.
For additional information regarding legal issues surrounding vaccine rules and regulations, click here to contact attorney Barry Covert.