Private Employer Mandatory Vaccination Policy With Medical and Religious Accommodations Is Allowed

Brian Weinstock

By Brian Weinstock

covid vaccineRecently, a group of healthcare workers in Kentucky requested a Temporary Restraining Order and/or a Preliminary Injunction from the U.S. District Court of Eastern Kentucky against an employer’s COVID-19 vaccination mandate in Beckerich, et al. v. St. Elizabeth Medical Center, et al. At question was whether a private employer is allowed to modify its employment conditions to require employees to be vaccinated in response to the unprecedented global pandemic known as COVID-19.

In Beckerich, St. Elizabeth’s Medical Center and physicians group implemented a mandatory COVID-19 vaccination policy for its employees. Under the policy, employees could avoid the mandatory vaccination by submitting a request for a medical exemption or sincerely held religious beliefs before October 1, 2021. The policy also indicated that failure of an employee to comply without an accepted exemption could result in termination. The employees argued that the policy violated their constitutional rights and claimed St. Elizabeth’s had not approved religious and medical exemptions to the vaccination policy in compliance with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.

Regarding the ADA claims, U.S. District Court Judge David Bunning noted private employers are required to offer medical and religious accommodations but the employees in Beckerich failed to show that St. Elizabeth had not complied with the ADA reasonable accommodations. The evidence revealed St. Elizabeth granted medical exemptions 13% of the time and granted deferments 61% of the time. Only 14% were denied with 10% pending. Judge Bunning noted St. Elizabeth had granted more medical accommodations than there were plaintiffs in the case. No evidence was provided showing that over 5,000 medical and religious exemptions had been requested. The judge determined the employees had very little chance at success on the merits because they failed to meet the key elements to prove an ADA claim.

Regarding Title VII claims, Judge Bunning noted the employees failed to suggest they could raise a preliminary case of religious discrimination. None of the named plaintiffs had been denied a religious exemption with only one marked pending but St. Elizabeth’s noted that request was approved.  Because no religious exemptions were denied, the employees were not able to prove any religious discrimination.

Judge Bunning noted “no Plaintiff in this case is being forcible vaccinated”  because the employees relied heavily on Guertin v. Michigan which dealt with the “right to bodily integrity” with respect to clean drinking water, a case against the state of Michigan and not a private entity.  Guertin cited forcible injection cases such as the government seeking a search warrant to surgically remove a bullet.  Guertin referenced forcible injections as a “foreign substance” such as lead contamination without the knowledge there was a contaminant. In contrast, no plaintiff in Beckerich was unknowingly ingesting a contaminant. Instead, the employees were choosing to comply with the employment policy or face consequences for non-compliance.

Judge Bunning asked, “Is the greater good made up of many different individual liberties, is it a singular collective liberty, or is it both?”  The judge cited Jacobson v. Massachusetts and noted in part:

“Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of the principle which recognizes the right of each individual person to use his own, …regardless of the injury that may be done to others.”

The judge also noted that the Jacobson ruling had not been overturned, stating that “Actual liberty for all of us cannot exist where individual liberties override potential injury done to others.”  This is why Massachusetts was permitted to impose a vaccine mandate without exception and with penalty of imprisonment during the smallpox pandemic. Beckerich involves a private entity and no coercion which is less restrictive than Jacobson.

In his final comments, Judge Bunning noted the court refused to adjudicate political policies and thoroughly reviewed and analyzed the facts, evidence, and the law. He noted, “If an employee believes his or her individual liberties are more important than legally permissible conditions on his or her employment, that employee can and should choose to exercise another individual liberty, no less significant – the right to seek other employment.”

The request for a Temporary Restraining Order was denied.

If you have any questions regarding a mandatory COVID-19 vaccination policy, contact one of our employment law attorneys.

Posted by Attorney Brian S. Weinstock. Weinstock concentrates on real estate and corporate transactional law, workers’ compensation, insurance defense, and other civil and commercial litigation. For businesses, he provides financial and legal analysis as well as operational strategies and ideas to manage risk.

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