Employers and entities have begun to institute COVID-19 vaccine mandates and programs, and are now experiencing resistance from some employees and unions. How are employers navigating COVID mandates, resistance, and responses? In the shifting legal landscape, how are employers and entities exploring avenues to keep employees and the public safe? Where do things stand on legal challenges to vaccine mandates? Join Meyers Nave Chair of First Amendment and Trial and Litigation Practice Groups, Deborah Fox, and Meyers Nave Chair of Labor and Employment and Workplace Investigations Practice Groups, Camille Hamilton Pating, as they provide a webinar to help private and public employers navigate this nuanced legal arena and its complex practical considerations. The webinar covers: Types of COVID-19 mandates including public accommodations Types of resistance to mandates Current litigation trends Accommodations and required documentation

1. Navigating the Pathways of
Vaccine Mandates and Current
COVID-19 Litigation
November 10, 2021
Presented by Deborah Fox and Camille Hamilton Pating

2. 2
• Vaccine Requirements - An Overview
• Elements of a Mandatory Vaccine Policy
• Religious and Medical Exemptions
• Union Opposition to Mandates
• Legal Challenges to Mandates
a) Liberty Arguments
b) Scope of Authority
c) Privacy
• Case examples
Objectives

3. 3
Instant Poll
What type of vaccine policy do you have?

4. 4
What Type of Vaccine Policy Do You Have?
a) Mandatory for all employees to get COVID-19 vaccine
as a condition of employment
b) Proof of COVID-19 vaccine required to access worksite,
but not a condition of employment
c) COVID-19 testing allowed as an
alternative to (a) or (b)
d) Different type of policy
e) No policy

5. 5
Coronavirus in California
https://www.nytimes.com/interactive/2021/us/california-covid-cases.html

6. 6
Vaccinations in California

7. 7
Introduction / Overview
Employers and public entities
have put forward mandated
programs and now are seeing
resistance
 How to navigate the
resistance?
 Appropriate responses?

8. 8
Jab or Job?
• Biden Vaccine Mandate
• Impacts 84 million workers
• Companies with 100+ workers
• Deadline January 4, 2022
• Federal OSHA requirements
for unvaccinated
 Weekly testing
 Wear face masks

9. 9
Federal OSHA “Vaccine or Test”
Emergency Regulations
The Federal OSHA COVID-19 Emergency Temporary Standard
(ETS) on Vaccination and Testing generally requires employers to
establish, implement, and enforce a written mandatory
vaccination policy
29 CFR 1910.501(d)(1)

10. 10
Fifth Circuit Injunction
• Issued on Saturday, Nov. 6, 2021
• Stays Enforcement of Biden/OSHA
Vaccine Mandate
• Orders Expedited Briefing
• Stay tuned for a run up to SCOTUS
!

11. 11
State and Local Elements of a Vaccine Policy
California State Recommendations for Fully Vaccinated People
(dated October 28, 2021) provides:
 Currently, employers are subject to and should follow
Cal/OSHA’s ETS guidelines
 However, employers must follow the CDPH and Local Health
Jurisdiction requirements where they exceed the Cal/OSHA
standards
Alameda County (November 1, 2021):
Where all employees are fully vaccinated, not required to
wear face coverings inside. Those who are not vaccinated
must wear a face covering indoors.

12. 12
Elements of a Vaccine Policy
Purpose: To provide a safe and healthy workplace,
consistent with COVID-19 public health guidance and legal
requirements, to protect employees and the public as it
reopens services and returns more employees to
workplaces.
Scope: Unvaccinated employees are at greater risk of
contracting and spreading COVID-19 within the workplace
and to the public that depends on public services.

13. 13
Elements of a Vaccine Policy
Procedures
To best protect its employees and fulfill its
obligations to the public, by effective date,
Employer’s policy require that all employees
must, as a condition of employment:
(1) report their vaccination status to the
employer; and
(2) be fully vaccinated and report that status to
the employer by fully vaccinated date
(3) identify when fully vaccinated date occurs

14. 14
Elements of a Vaccine Policy
Unvaccinated Employees
Employees who are
unvaccinated must
submit to testing and
also continue to wear a
face covering.

15. 15
Foregoing Mask: Protected Speech?
15

16. 16
Protected Speech?
Q: Is not wearing a mask
expressive conduct triggering
First Amendment protection?
A: Two pronged test:
1. an intent to convey a
message particularized
message; and
2. that the message would be understood by those that
viewed it.

17. 17
Protected Speech?
Edge v. City of Everett, 929 F.3d 657 (9th Circuit 2019)
• Bikini Barista argued requiring covering “minimum
body areas” while serving violated First Amendment.
• No particularized message by wearing a bikini
and unlikely others would understand plaintiffs’
intended message of “fearless body acceptance.”
• Ninth Circuit reversed district court’s grant of PI
finding plaintiffs’ wardrobe did not constitute
expressive conduct within the meaning of First
Amendment.

18. 18
Protecting Public Health & Safety
Buhl v. Hannigan, 16 Cal.App.4th 1612 (1993)
• Challenge brought to motorcycle helmet law.
• Court found helmet law:
• Rationally related to legitimate safety concern.
• Does not impermissibly infringe on
constitutionally protected freedom of religion,
freedom of expression, or right of privacy.
• Operating a motorcycle is not expression and impact on Sikh turban
wearing incidental to valid and neutral law.

19. 19
Exemptions
 Religious Accommodation
 Medical Accommodation

20. 20
Legitimate Vaccine Refusal?
a) An employee who obtains a doctor’s note not to take the vaccine,
because it would make him nervous.
b) An employee who is fearful that a vaccine could impact her ability
to get pregnant.
c) An employee who has an autoimmune disease with a doctor’s
note that she should not get a vaccine.
d) Someone who sincerely doesn’t believe in vaccines.
What are the risk factors that you are balancing?

21. 21
EEOC Exemptions: Medical
Medical Exemption Requirements
 Doctor’s note must establish
that exemption from the
vaccination requirements is
necessary for employee to
perform the essential functions
of his/her job

22. 22
EEOC Exemptions: Religious
Purpose of Interactive process:
 to resolve conflict between
sincerely held religious belief,
practice, or observance and
vaccine requirement
“Hardline” vs. “Soft” Religious Exemption

23. 23
EEOC Exemptions: Religious
Request does not qualify for a
religious accommodation if it is
based on personal preference,
concerns about the possible
effects of vaccine, or political
opinions.

24. 24
Union Opposition to Vaccine Requirements

25. 25
What about Police Officers?
 Mandate Vaccination
 Exemptions
 Weekly Testing
 Challenges

26. 26
First Responders
"I don’t want to be in a position to
lose 5, 10% of my workforce
overnight on a vaccine mandate“
• crime
• Not enforcing compliance
• Testing option Los Angeles Sheriff Alex Villanueva

27. 27
Legal Challenges
Is there a constitutional right to decline vaccine?
• Government just needs rationale basis
• No heightened review
• Jacobson v. Commonwealth of Massachusetts,
197 U.S. 11 (1905)
 Small pox and public health protection
 SCOTUS in early rounds of COVID litigation focus was on
religious exemptions
?

28. 28
The Jacobson Rubric
• Courts have relied on Jacobson in
analyzing stay-at-home orders
• Jacobson directs that a court’s review
of temporary measures taken during
an emergency:
 Is not based on traditional constitutional review.
 Instead, look to whether (1) actions have a real or
substantial relation to the crisis, and (2) measures are
“beyond all question” a “plain, palpable invasion” of
clearly protected rights.

29. 29
SCOTUS - Vaccines
John Does 1–3, et al. v. Janet T. Mills, Governor of Maine, et al.
 Health care workers challenge
to vaccine mandate
 Application denied
 Maine had no
religious exemption
 First Amendment at play?

30. 30
Scope of Executive Power

31. 31
Scope of Executive Power
Gallagher v. Newsom (2020) 51 Cal. App. 5th 1093
• Challenge to scope of Governor’s powers
• Requiring mail in ballots for Nov. 2020 election
• Broad powers under the ESA
• No violation of separation of powers
• Govt Code 8627 allows enactment of legislation

32. 32
Takeaways for Employers
Public
Safety
Not easy to balance the risks of:
• the public’s right to be safe;
• discipline or termination of a
large number of employees;
• creating multiple individual
exceptions that may lead
to litigation.
Employee
Rights

33. 33
Vaccine Passport
• Safe Pass LA
• Indoor Dining – Contra Costa
• Businesses as Vaccine Police
• In-n-Out-Burger Closes
Indoor Dining

34. Consider Diversity, Equity and Inclusion Impacts
34

35. 35
DEI Concerns: Mandatory Vaccine Policies
• Black/Indigenous/Persons of
Color (BIPOC) employees are
disproportionately frontline
“essential” workers
• Vaccination rates in these
population are lower
• BIPOC communities and
preexisting health risks
• What are the demographic
impacts of termination?

36. 36
Presenters
Deborah J. Fox
Principal
Chair, First Amendment Practice
Chair, Trial and Litigation Practice
dfox@meyersnave.com, 213.626.2906
Camille Hamilton Pating
Principal
Chair, Labor & Employment Practice
Chair, Workplace Investigations Practice
cpating@meyersnave.com, 510.808.2000