Challenges to employer-instituted vaccine mandates have become ubiquitous across the country this year, as some employees claim they should not have to get vaccinated against COVID-19 in order to keep their jobs. Also nearly universal? Courts rejecting these challenges and upholding an employers’ right to mandate their workers get the shot as a condition of employment. A recent court ruling in favor of New York City Department of Education is no different. While the Delta variant was surging in many parts of the United States, four NYC educators sued on behalf of a class of employees to halt a mandate that would require them to be vaccinated or lose their jobs. The next week, the U.S. District Court for the Eastern District of New York denied their request to block the rule. What can your workplace learn from this ruling?

The NYC Schools Vaccine Mandate

On July 26, NYC Mayor Bill de Blasio announced the City would require all municipal workers to receive one dose of the COVID-19 vaccine by the time schools opened in mid-September 2021. The mandate allowed employees to “test out” by submitting regular negative COVID tests in lieu of vaccination, similar to the “test out” option permitted by the Federal OSHA mandate.  On August 23, however, the mayor announced that Department of Education employees would not be allowed to “test out” of the vaccine, while other municipal employees still would be allowed this option.

School Employees’ Request for an Injunction

The employees who brought the lawsuit against NYC and the Board of Education claimed that the “draconian” vaccine mandate “shocks the conscience” and violates their constitutional right to not be deprived of “liberty” without due process. More specifically, they claimed to have a right to pursue their chosen profession, and the mandate prevented them from doing so. The employees alleged the NYC mandate is particularly unfair and arbitrary because it does not include an option to “test out,” even though that option was still being offered to other workers.

Unlike in other parts of the country, the NYC school employees did not argue that no mandates should be permitted, only that a no-alternative vaccine mandate was too harsh and that other mandates (such as universal masking) could provide similar protection. Three of the four class representatives also alleged that they already had COVID antibodies that would protect them from contracting the virus.

Federal Court Denial of the Injunction

Only a few weeks before school was set to start in the city, the federal court denied the employees’ request to halt the mandate requiring them to get the first shot of the COVID-19 vaccination. The court explained that, while the U.S. Constitution does provide protection for individuals to pursue a profession of their choice, it does not provide a “right to a specific job.” The court pointed out that the employees were free to seek similar jobs within their chosen profession elsewhere in the area. 

The court also cited to precedent that permitted governments to mandate vaccines for all adults, not just municipal employees. It concluded that a mandate of a vaccine approved by the FDA was not an invasion of the employees’ constitutional rights.

What Should Employers Take Away from This Ruling?

Thus far, the vast majority of public and private employers who have implemented a vaccine mandate have succeeded in having those mandates upheld by the courts. If your company is considering implementing a vaccine mandate, you should know you are in good company and the courts have frequently upheld such mandates as constitutional. 

To put your organization in the best possible position while imposing a vaccine mandate on your workforce, here are the six steps you should consider:

1. Spend time considering how your employees, customers, and other constituents are likely to respond to the policy, including how you will handle pushback. Anticipate and prepare for certain levels and forms of anxiety and/or resistance.
2. Figure out the best way to communicate your policy to employees, including how much notice to provide before implementing the requirement, how proof of vaccination will be kept, and who within the company will have access to the confidential information.
3. Consider related logistics, including compensation issues that may be implicated for the time spent traveling to and receiving the vaccine and any related reimbursement costs. Make sure you also understand when employees are entitled to be paid for their time, such as supplemental paid sick leave for time taken to receive the vaccine or to recover from vaccine side effects.
4. Develop a robust and clear reasonable accommodation policy to address religious and disability issues. Take special care to communicate and administer the accommodation process in a thoughtful way, with emphasis on individualized, confidential consideration of each request.
5. Be wary about the issues raised by posing pre-screening vaccination questions that may trigger ADA requirements (more detail found here).
6. Develop a designated “vaccine team” for coordinating this entire process.