August 13, 2021
Here is the message VSEA General Counsel Tim Belcher emailed Wednesday night to members working in the 24/7 facilities where the State’s most recent vaccination policy is being implemented:
Yesterday, the Governor announced an intention to require vaccinations for employees in 24-7 facilities. We understand that, at least, as of now, employees who refuse will be subject to testing and required to use masks, but will not face termination. While the law is evolving rapidly on these issues, I can provide this update as of this time.
- When these issues first arose, there was a legal argument that no vaccine approved under an “emergency use authorization” can be mandated. That argument has been rejected by one court as well as both the USDOJ and the EEOC, and is likely to evaporate in the near future as one or more vaccines receives full authorization.
- In VSEA’s view, a unionized employer may not impose a vaccine mandate or incentive program without notice to the union and the opportunity to bargain to impasse over both the decision and its impact, except perhaps under emergency circumstances. We take the view that there is no current emergency that would justify unilateral action by the employer.
- Even if unilateral action were justified on the basis of an emergency, the employer is required to bargain over the impact of such a mandate.
- Under some circumstances, employees may be able to seek accommodations for health reasons or based on bona fide religious objections. That will depend on individual facts, and will only protect employees if immunity from the virus is not deemed to be an essential function of the job.
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